author: V. J. Brennan, J.

text:
    WORTH v DORTMAN
    Docket No. 78-328.
    Submitted June 4, 1979, at Lansing.
    Decided December 5, 1979.
    Leave to appeal denied, 408 Mich 924.
    Ronnie Worth and Donna Worth, his wife, brought a personal injury action against defendants, Larry A. Dortman and Roger J. Au and Sons, Genesee Circuit Court, Donald R. Freeman, J. The complaint alleged that Ronnie Worth, a passenger in a truck, sustained severe and permanent injuries resulting from an accident involving the truck owned by defendant Au and driven by defendant Dortman and that Dortman was wilfully and grossly negligent in causing the truck to leave the road and crash into a tree. Defendant Au answered and asserted that plaintiff Ronnie Worth was contributorily negligent. Defaults were entered against Dortman for failure to fill out and return a pretrial discovery questionnaire and for failure to attend a pretrial conference. Ronnie Worth testified, at trial, that he was employed as a foreman by Au and that as partial compensation for his work he received the use of the truck involved in the accident. On the evening of the accident he ran into Dortman at the Palace Gardens Bar where he and Dortman drank intoxicants for approximately four hours. When they left the bar Dortman drove the truck with Worth’s consent after it was agreed that Worth was too drunk. Worth also testified that he had previously instituted a cause of action against Palace Gardens and had accepted $75,000 in settlement of his claim. The jury returned a verdict of "no amount” against defendant Dortman and a verdict of no cause of action against defendant Au. Plaintiffs appeal. On appeal, plaintiffs argue that the lower court erred by denying their motion for a directed verdict against defendant Au, as truck owner, where defendant Dortman, as operator of the truck, had previously defaulted, thereby admitting liability. Plaintiffs’ second argument is that the admission into evidence of Dortman’s deposition, taken by plaintiffs in the Palace Garden dramshop action, was improper. Plaintiffs also claim that the results of a Breathalyzer test given to Dortman after the accident should not have been admitted into evidence over objection, that the court improperly instructed the jury, that the court erred in allowing defendant Au to amend its complaint to assert the defense of negligent entrustment, that the court’s refusal to permit plaintiffs to call as a witness an employee/agent of Au constituted error, that there were insufficient facts on the record to place the issue of Ronnie Worth’s ownership of the truck before the jury, and that the verdict of "no amount” against Dortman was clearly inadequate. Held:

      References for Points in Headnotes

       7 Am Jur 2d, Automobiles and Highway Traffic § 361.
    8 Am Jur 2d, Automobiles and Highway Traffic § 524 et seq.

       29 Am Jur 2d, Evidence § 658.
    30 Am Jur 2d, Evidence § 1097.

       29 Am Jur 2d, Evidence §§ 738, 743 et seq.

    Identity of subject matters or issues as condition of admissibility in civil case of testimony or deposition in former proceeding of witness not now available. 70 ALR2d 494.

       7 Am Jur 2d, Automobiles and Highway Traffic §§ 332-334.
    29 Am Jur 2d, Evidence § 830.

       61 Am Jur 2d, Pleading § 309.

       8 Am Jur 2d, Automobiles and Highway Traffic §§ 573, 576.
    Liability based on entrusting automobile to one who is intoxicated or known to be excessive user of intoxicants. 19 ALR3d 1175.

       29 Am Jur 2d, Evidence § 746.
    81 Am Jur 2d, Witnesses §§ 75, 76.

       22 Am Jur 2d, Damages §§ 86, 162 et seq.

    75 Am Jur 2d, Trials § 321.
    76 Am Jur 2d, Trials § 1166.

      1. An admission predicated upon a default only operates against the particular party who defaults; it does not bind a codefendant who appears and contests the litigation. Therefore, the default of Dortman can not operate to deny Au, as owner of the vehicle and codefendant, from asserting the defenses available to it. Contributory negligence of plaintiff was such a defense. Denial of plaintiff’s motion for a directed verdict against Au, based on Dortman’s defaults, was proper.
    2. The admission into evidence of Dortman’s deposition which was taken by plaintiffs in the previous dramshop action was proper. Dortman was unavailable for trial. The purpose of the testimony, number of drinks consumed by Dortman and Worth, was substantially the same in both the dramshop and the present proceeding. This was the same subject raised by defendant Au in its assertion of contributory negligence. The established criterion for admission into evidence of the deposition was satisfied. Furthermore, if the matter were to be tried again the deposition would be admissible under the Michigan Rules of Evidence.
    3. Only Dortman could object to the introduction of his Breathalyzer test results. The restraint on admissibility is personal. Therefore, plaintiffs, as parties other than the person tested, lack standing to invoke the exclusionary rule. The court properly ruled that the results were admissible.
    4. Plaintiffs’ claim of instructional error is unpersuasive. The court gave the required standard jury instructions with proper modifications.
    5. The affirmative defense of contributory negligence was properly raised in defendant Au’s original answer. This defense and that of negligent entrustment are virtually identical. Therefore Au’s assertion of the defense of negligent entrustment resulted in nothing more than redundant pleadings and jury instructions. Under these circumstances, allowing Au to amend its complaint to assert the defense of negligent entrustment was not improper. Any error would be harmless.
    6. Refusing to permit plaintiffs to call Au’s employee/agent as a witness was not erroneous. A separate record established that the witness had no personal knowledge of the matters about which plaintiffs sought his testimony.
    7. There were sufficient facts on the record to place the issue of Worth’s ownership of the vehicle before the jury.
    8. The court properly refused to grant a new trial against defendant Dortman. Plaintiffs’ out-of-pocket expenses were controverted. Therefore, the "no amount” verdict against Dortman would not be unreasonable 'if the jury found the expenses to be less than the $75,000 received by plaintiffs in their previous dramshop action.
    Affirmed.
    1. Automobiles — Passengers — Owner Liability — Contributory Negligence — Statutes.
    A vehicle owner, in a suit brought by an injured passenger under the owner liability statute, may assert the defense of contributory negligence on the part of the injured passenger (MCL 257.401; MSA 9.2101).
    2. Action — Defaults — Admissions — Defaulting Party — Liability — Codefendants.
    An admission predicated upon a default only operates as an admission of liability against the particular party who defaults; the admission is binding only upon the defaulting party and it does not bind a codefendant who appears and contests the litigation.

      3. Evidence — Former Action — Criteria for Admission — Availability of Witnesses — Oath —■ Subject Matter — Cross-Examination.
    The criteria for admission of testimony taken in another action are: (1) unavailability of the witness, (2) testimony taken under oath in a prior proceeding, (3) substantially the same subject matter in both the former and present proceeding, and (4) the party objecting to the introduction had the opportunity of full cross-examination in the first action.
    4. Evidence — Blood Alcohol Tests — Implied Consent — Criminal Actions — Civil Actions — Scope of Consent — Third Persons — Standing — Statutes.
    The results of a blood alcohol test which is administered pursuant to the implied consent law are not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor or for driving while impaired, and such test results are inadmissible in civil suits against the person tested; however, an objection that blood alcohol tests are being used in a manner which exceeds the scope of the consent of the person tested can only be asserted by the person tested; the restraint is personal; therefore, a party other than the person tested lacks standing to invoke the exclusionary rule (MCL 257.625[c]; MSA 9.2325[3]).
    5. Pleading — Amendment of Pleadings — Discretion — Abuse of Discretion — Appeal and Error.
    Permission to amend a party’s pleadings rests in the discretion of the court and will not be set aside unless the trial court has abused its discretion.
    6. Automobiles — Negligent Entrustment — Liability of Owner or Lender — Statutes.
    The doctrine of negligent entrustment is a plaintiffs theory of recovery, not an affirmative defense; the essential aspect of this theory is that an owner or lender of a motor vehicle has the duty to refrain from placing it in the hands of a known unfit or incompetent driver for operation on public highways, and if he does, the owner or lender of the automobile may be liable to an injured plaintiff for breach of this common-law duty; this right of recovery against an owner is independent of any liability of the owner under statute (MCL 257.401; MSA 9.2101).
    7. Witnesses — Evidence — Facts — Personal Knowledge — Admissibility.
    A witness is required to testify to facts within his personal knowledge and where it is evident from a separate record that the witness had no personal knowledge with respect to matters in issue his testimony should not be received in evidence at the trial.
    8. Damages —■ Verdict — Out-of-Pocket Expenses — Appeal and Error.
    A jury verdict may not ignore uncontroverted out-of-pocket expenses where liability of a defendant has been established and where there is uncontroverted evidence establishing a plaintiffs out-of-pocket expenses; however, where the amount of out-of-pocket expenses were controverted and the jury may have found them to be less than an amount which a plaintiff had received in a related action there is no error in a jury verdict of "no amount”.

      Robert A. Grimes, for plaintiffs.

      Wilson, Portnoy, Basso & Leader, P.C. (by Robert P. Roth), for defendants.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

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

   V. J. Brennan, J.

By complaint filed October 2, 1973, the plaintiffs, Ronnie Worth and Donna Worth, brought a personal injury action against defendants, Larry Allen Dortman and Roger J. Au and Sons. The complaint alleged that plaintiff Ronnie Worth sustained severe and permanent injuries resulting from a motor vehicle accident on October 22, 1970, involving a truck owned by defendant Au and driven by defendant Dortman. Plaintiff Ronnie Worth was a passenger in the vehicle. The complaint alleged that Dortman was willfully and grossly negligent in causing the truck to leave the road and crash into a tree. Plaintiffs alleged several specific instances of negligent conduct on Dortman’s part including operation of a vehicle while under the influence of intoxicating liquor.

Defendant Au answered and asserted that plaintiff Ronnie Worth was contributorily negligent. Defendant Dortman filed a handwritten general denial. On September 26, 1974, the default of defendant Dortman was entered based on his failure to fill out and return to the court a pretrial discovery questionnaire. A second default was entered against Dortman on September 16, 1976, based on his failure to attend a pretrial conference held on September 26, 1974.

At trial, plaintiff Ronnie Worth testified that on the date of the accident he was employed as a foreman by defendant Au. Ronnie Worth testified that as partial compensation for his work he received the use of the truck involved in the accident. Plaintiff Ronnie Worth was responsible for the maintenance of the truck.

Plaintiff Ronnie Worth related that he went to the Palace Gardens, a bar, at approximately 5:30 p.m. on the evening of the accident. Defendant Dortman was present at the bar when the plaintiff arrived. Plaintiff Ronnie Worth loaned Dortman $20 to buy drinks. Plaintiff Ronnie Worth drank beer and whiskey and played pool during the ensuing four hours. Plaintiff Ronnie Worth testified that upon leaving the bar, Dortman advised him that he, Dortman, would drive because the plaintiff was too drunk. Plaintiff Ronnie Worth consented, got into the truck and went to sleep. It appeared to plaintiff Ronnie Worth that Dortman was capable of driving. The next recollection of plaintiff Ronnie Worth was the truck rolling with himself being thrown through the windshield.

On cross-examination, Ronnie Worth testified that he had previously instituted a cause of action against Palace Gardens and had accepted $75,000 in settlement of his claim.

Defendant Au called Sergeant Robert Darling of the Michigan State Police. Darling testified that he administered a Breathalyzer test 'to defendant Dortman after the accident. The plaintiffs objected to the admission of the test results on the ground that such results cannot be used in an action unrelated to a drunk driving prosecution. The trial court admitted the evidence on the ground that the objection raised by the plaintiffs could only be raised by defendant Dortman. Sergeant Darling testified that he had administered two Breathalyzer tests to Dortman and obtained results of .16 and .17% by weight of alcohol in the blood. The witness further testified that at the time of the accident, .15% was considered the point of intoxication by statute.

Defendant Au also proposed to read into evidence the deposition testimony of Larry Dortman which was taken in the earlier dramshop action. Plaintiffs objected to the admission of Dortman’s deposition. The trial court admitted the evidence.

Dortman’s deposition testimony indicated that he consumed 10 to 12 drinks while at the Palace Gardens on the evening in question. Dortman stated that Worth asked him to drive. Dortman admitted that he might have been going over the speed limit and that he may have been a little sleepy. Dortman testified that he was not used to the road and missed a turn.

At the close of defendant’s proofs the plaintiffs moved for a directed verdict of defendant Au’s liability on the ground that the negligence of the operator of the vehicle, Dortman, had been established by Dortman’s default and that the owner of the truck, defendant Au, had no further standing to contest its liability under the owner’s liability act. The trial court denied the motion.

The jury returned a verdict of "no amount” against defendant Dortman and a verdict of no cause of action against defendant Au. Plaintiffs appeal by right.

Plaintiffs first argue that in this action brought under the vehicle owner’s liability statute, MCL 257.401; MSA 9.2101, the lower court erred by denying plaintiffs’ motion for a directed verdict against defendant owner where defendant operator had previously defaulted thereby admitting liability. We disagree.

It is well established that the vehicle owner may assert the defense of contributory negligence on the part of the injured passenger in a suit brought under the owner liability statute. Toomer v Steiner, 43 Mich App 12; 202 NW2d 808 (1972). See Hoag v Paul C Chapman & Sons, Inc, 62 Mich App 290; 233 NW2d 530 (1975). See also Tarnowski v Fite, 335 Mich 267; 55 NW2d 824 (1952), Cacavas v Bennett, 37 Mich App 599; 194 NW2d 924 (1972).

While a default operates as an admission of liability, the admission is binding only upon the defaulting party. As stated in Klimmer v Klimmer, 66 Mich App 310, 313; 238 NW2d 586 (1975):

"An admission predicated upon a default only operates against the particular party who defaults; it does not bind a codefendant who appears and contests the litigation. 47 Am Jur 2d, Judgments, § 1195, p 212. Cf. City Finance Co v Baldwin, 326 Mich 174; 40 NW2d 107 (1949).”

Here the plaintiffs are predicating the owners liability on the operator’s default, thus denying the owner of the defenses available to it. The default of the codefendant operator cannot be so construed. The lower court’s ruling in this regard was proper.

Plaintiffs next argue that the admission of the deposition of defendant Dortman taken by plaintiffs in the previous dramshop action was improper. We find no error. Dortman, who operated the vehicle at the time of the accident, was unavailable for trial. At the time of trial the admission of the deposition in question was governed by the rule enunciated in Pontiac School Dist v Sachse, 274 Mich 345; 264 NW 396 (1936). The criteria for admission are set forth as follows: (1) unavailability of the witness, (2) testimony taken under oath in a prior proceeding, (3) substantially the same subject matter in both the former and present proceeding, and (4) the party objecting to the introduction had the opportunity of full cross-examination in the first action.

Plaintiffs argue that criterion number three was not met. We disagree. The subject of the deposition in the dramshop action was the number of drinks consumed by Larry Dortman and Ronnie Worth at the Palace Gardens Bar. This was the same subject raised by defendant Au in its assertion of contributory negligence. In any event, if the matter were to be tried again, the deposition would be admissible under MRE 804(b)(1).

Plaintiffs next cite McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976), and argue that the trial court erred in admitting over objection the results of the Breathalyzer test administered to defendant Dortman pursuant to the implied consent statute. MCL 257.625(c); MSA 9.2325(3). Defendant Au contends that plaintiffs lack standing to raise this objection. We agree with defendant Au.

MCL 257.625(c); MSA 9.2325(3) provides that a person who operates a motor vehicle is deemed to have given consent to a blood alcohol test if he is arrested for driving under the influence of intoxicating liquor or while his ability to drive has been impaired due to the consumption of intoxicating liquor.

In People v Keen, 396 Mich 573; 242 NW2d 405 (1976), the Supreme Court construed the "implied consent” set forth above and concluded that results of a blood alcohol test administered pursuant to the statute were not admissible in a criminal prosecution other than for driving while under the influence of intoxicating liquor or for driving while impaired. The Court at pp 585-586 reasoned:

"It would exceed the scope of the consent given to allow test results obtained on the representation that they will be used in prosecutions where the maximum penalty for a first offender is 90 days imprisonment to be used in prosecutions for a felony with a maximum penalty of 15 years.
"A police officer has no statutory authority to request that a driver submit to a blood alcohol test unless the arrest is for driving under the influence of intoxicating liquor. The officer is required to advise the driver that if he consents to a test, the test results shall be admissible in DUIL and driving while impaired prosecutions. Test results obtained following consent obtained on that advice cannot properly be used in a prosecution for manslaughter. The test results are not admissible in this case.”

In McNitt, supra, the Court applied the limited scope of the consent analysis to render such test results inadmissible in civil suits against the person tested. However here we are faced with a party other than the person tested asserting the exclusionary rule. We hold that such a party lacks standing.

An objection that blood alcohol tests are being used in a manner which exceeds the scope of the consent of the person tested can only be asserted by the person tested. Even Fourth Amendment rights are considered personal rights which may be vicariously asserted. Brown v United States, 411 US 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973), People v Portman, 73 Mich App 366; 251 NW2d 589 (1977). The plaintiffs who are asserting the rights of the person tested have no rights protected by Keen and McNitt. The trial court properly ruled that the results were admissible.

The remaining allegations of error warrant summary discussion. As to plaintiffs’ claim of instructional error, the trial court properly gave SJI 14:01 and 14:02 as requested by plaintiffs and as modified by Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976).

Plaintiffs claim error when the lower court allowed defendant to amend its complaint to assert the defense of "negligent entrustment”. Permission to amend a party’s pleadings rests in the discretion of the court and will not be set aside unless the trial court had abused that discretion. Gratiot Lumber & Coal, Inc v Lubinski, 309 Mich 662; 16 NW2d 112 (1944).

The confusion created by defendant Au’s motion to amend its pleadings to assert negligent entrustment stems from the fact that the doctrine of negligent entrustment is a plaintiff’s theory of recovery, not an affirmative defense. The essential aspect of this theory is that an owner or lender of a motor vehicle has the duty to refrain from placing it in the hands of a known unfit or incompetent driver for operation on public highways. An owner or lender of an automobile may be liable to an injured plaintiff for breach of this common-law duty. Further, this right of recovery against an owner is independent of any liability of the owner under MCL 257.401; MSA 9.2101. Perin v Peuler, 373 Mich 531, 534-536; 130 NW2d 4 (1964). The essence of defendant Au’s negligent entrustment "defense” is that Ronnie Worth contributed to his own injury by negligently placing the truck in the hands of Larry Dortman who was known to him to be unfit to drive due to his intoxication. This defense is virtually identical to the affirmative defense of contributory negligence which was properly raised in defendant Au’s original answer. Thus Au’s assertion of the defense of negligent entrustment resulted in nothing more than redundant pleadings and jury instructions. Under these circumstances any error was harmless.

Plaintiffs next claimed error is the lower court’s refusal to permit plaintiffs to call as a witness an employee/agent of defendant Au. We find no error. It was quite evident from the separate record established below that the witness had no personal knowledge of matters about which the plaintiff sought his testimony. Dudek v Popp, 373 Mich 300; 129 NW2d 393 (1964). The plaintiffs had ample opportunity to make an offer of proof that the witness could testify to facts within his personal knowledge. The plaintiffs were unable to do so.

As to plaintiffs’ next claim, there are sufficient facts on the record to place the issue of Ronnie Worth’s ownership of the vehicle, under MCL 257.37; MSA 9.1837, before the jury.

Finally, there was no abuse of discretion in the trial court’s refusal to grant a new trial against defendant Dortman. Plaintiffs claim that the verdict of "no amount” against Dortman was clearly inadequate. We disagree. Where liability of a defendant has been established and where there is uncontroverted evidence establishing a plaintiff’s out-of-pocket expenses, the jury errs in bringing back a verdict amounting to less than the out-of-pocket expenses. Jackson v Gregory, 32 Mich App 301; 188 NW2d 629 (1971), Hugener v Michlap, 2 Mich App 157; 139 NW2d 132 (1966). Here the amount of out-of-pocket expenses was controverted and the jury may have found it to be less than the $75,000 received by plaintiffs in their previous action. We find no error.

Affirmed. Costs to be awarded defendants-appellees.

       The plaintiffs have not raised the introduction of this evidence as an issue on appeal.


source: Caselaw Access Project

author: R. B. Burns, J. N. J. Kaufman, J. J. H. Gillis, P.J.

license: Public Domain

text:
      In re PRICHARD ESTATE (MURRELL v PARAGON TRANSPORT, INCORPORATED)
    Docket Nos. 78-973, 78-974.
    Submitted August 27, 1979, at Detroit.—
    Decided December 5, 1979.
    Leave to appeal applied for.
    Ronald C. Murrell was granted a right of first refusal to purchase all the stock of Earl C. Smith, Inc., by the last will and testament of C. Carlton Prichard, who owned the stock. This right was, by the terms of the will, subject to Murrell’s remaining in the employ of Smith until Prichard’s death. On May 1, 1976, Murrell drafted a letter of resignation to be effective that day, and on May 6, 1976, he withdrew it at the request of the directors of Smith at a special board meeting held for the purpose of acting upon the resignation. Later on May 6 Prichard died. The executor of Prichard’s estate recognized Murrell’s right of first refusal to purchase the Smith stock, and accepted a bid from Paragon Transport, Incorporated, subject to Murrell’s right. Murrell chose to purchase the stock for the amount of Paragon’s bid. About 40 days later, Murrell notified the executor that he had been refused a loan from one of the financial sources he had been seeking. The same day Paragon made a new offer to purchase, at a higher price than originally bid. The executor shortly thereafter terminated Murrell’s right to purchase and accepted Paragon’s bid.
    Murrell brought a petition in St. Clair County Probate Court to enjoin the sale of the stock to Paragon and for a construction of Prichard’s will granting Murrell the right to purchase the stock. In two separate orders the probate court held that Murrell had been granted a right of first refusal and enjoined the sale of the stock to any party other than Murrell. Paragon appealed the two orders to St. Clair Circuit Court, which affirmed, Ernest F. Oppiiger, J. Paragon appeals, and Murrell cross-appeals. Held:

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error §§ 182, 183.

       53 Am Jur 2d, Master & Servant § 2.

       31 Am Jur 2d, Executors and Administrators § 369 et seq.

    80 Am Jur 2d, Wills § 1483.

       42 Am Jur 2d, Injunctions § 2.

       80 Am Jur 2d, Wills § 1483.

       4 Am Jur 2d, Appeal and Error § 76.

      1. Murrell’s cross-appeal challenges Paragon’s standing to appeal the probate court orders. Paragon in good faith entered into a contract to purchase the stock and could have done so except for the probate court orders. It is, therefore, an "aggrieved person” for the purpose of the statute regulating appeals from probate court, and has standing to appeal the orders.
    2. The probate court’s finding that Murrell was continuously employed by Smith until the time of Prichard’s death was not erroneous, and the court was therefore correct in recognizing that Murrell did have a right of first refusal to purchase the stock.
    3. The executor did not act unreasonably in terminating Murrell’s right under the circumstances. The injunction was, therefore, improperly granted.
    Reversed.
    N. J. Kaufman, J., concurred separately. He would hold that Murrell’s priority rights terminated when he notified the executor that he was unable to exercise his priority and neither requested an extension nor presented any assurances of performance.
    J. H. Gillis, P.J., dissented. He would hold that the injunction was properly granted because under the circumstances and under the terms of the will the probate court did not clearly err in finding that the executor did not allow a reasonable length of time for Murrell to exercise his option. He would affirm.
    Opinion of R. B. Burns, J.
    1. Parties — Aggrieved Persons — Appeal from Probate Court.
    An aggrieved person, for purposes of acquiring standing to appeal from a probate court order, is one who has some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.
    2. Appeal and Error — Findings of Fact — Employment.
    A probate court did not err in finding that a party had continued in the employ of his employer although he had tendered his resignation where during the time in question he maintained a continued commitment to the employer by attending a series of corporate meetings and participating in telephone calls and board meetings relative to the employer’s business, he was continuously paid during the time in question, and no employee benefits were withheld from him.
    3. Executors and Administrators — Sale of Stock — Right of First Refusal.
    An executor of a deceased person’s estate did not act unreasonably in terminating a plaintiffs right of first refusal to purchase stock held by the deceased, which right was conferred upon the plaintiff by the will of the deceased, where some 40 days had passed after the plaintiff stated his intention to purchase the stock and where there is no indication that the executor acted in bad faith or with undue haste.
    4. Injunction — Extraordinary Remedies.
    Injunctive relief is an extraordinary remedy which issues only when justice requires it.
    Opinion of N. J. Kaufman, J.
    5. Wills — Testamentary Option to Purchase Property — Termination of Option.

      A petitioner’s testamentary right of ñrst refusal to purchase stock terminated when, more than a month after he indicated his intention to purchase, he notiñed the executor that he could not exercise his priority because of refusal of a potential fínancial backer to loan the money and the petitioner did not request an extension of time or present any assurances of performance.

    Dissent by J. H. Gillis, P.J.
    6. Wills — Testamentary Options to Purchase Property — Exercise of Option.

      A testamentary option to purchase property must be exercised, if at all, within a reasonable time where no time for exercising the option is ñxed by the will; what constitutes a reasonable time depends on the circumstances of the particular case.

      7. Appeal and Error — Findings of Fact — Clear Error.

      An appellate court should not set aside a ñnding of fact of a lower court unless such ñnding is clearly erroneous; a ñnding is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with the deñnite and ñrm conviction that a mistake has been made.

      8. Executors and Administrators — Sale of Stock — Right of First Refusal.

      An executor acted prematurely in terminating a petitioner’s

      testamentary right of ñrst refusal to purchase stock owned by the decedent where the will provided that terms of such sale were to be mutually agreed upon and there is no claim that the petitioner had agreed to the executor’s proposed date for closing the transaction, where the petitioner was given only 40 days to arrange financing of a large sum, and where the executor was aware that petitioner was seeking financing from several sources.

      Matheson, Bieneman, Parr, Schuler & Ewald (by R. Ian Hunter and James D. Osmer), and Dickinson, Wright, McKean, Cudlip & Moon (by Kenneth J. McIntyre and John A. Stevens), for plaintiff.

      Schlussel, Lifton, Simon, Rands, Kaufman, Lesinski & Jackier, and Simpson, Moran & Burnett, for defendant.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

In this action both plaintiff and

defendant assert a right to purchase all the stock of Earl C. Smith, Inc. (Smith), a Michigan corporation. The Smith stock was owned by C. Carlton Prichard (Prichard) who died on May 6, 1976. Plaintiff asserts a right to purchase the stock pursuant to a right of first refusal granted to him by the Last Will and Testament of Prichard. Defendant asserts its right pursuant to a contract entered into between it and the executor of the Prichard estate. Two lower courts have held plaintiff’s claim to be superior.

Plaintiff was employed by Prichard as an officer of Smith. In his will Prichard granted to plaintiff an opportunity to purchase all the Smith stock at its fair market value should plaintiff continue in Prichard’s employ until Prichard’s death. On April 30, 1976, Prichard and plaintiff had an apparently inexplicable falling out and plaintiff offered to resign his position. Prichard told plaintif to "Go ahead”.

The following day, plaintiff drafted a letter of resignation which stated that his resignation was effective on that date, May 1, 1976. Defendant contends that this resignation terminated plaintiff’s employment at Smith and prevented him from meeting the condition imposed under Prichard’s will. Plaintiff contends that the resignation was ineffective, and alternatively, if it ever became effective, that it was rescinded when he withdrew it at the request of the Smith directors at a special board meeting held on May 6, 1976, prior to Prichard’s death.

After Prichard’s death, the executor of Prichard’s estate recognized plaintiff’s right of first refusal and solicited bids on the Smith stock, subject to that right, to establish the stock’s fair market value. Defendant’s bid of $2,850,000 was accepted by the executor, subject to plaintiff’s right, on November 15, 1976. By letter of November 17, 1976, plaintiff was advised that he had until December 15, 1976, to exercise his right of first refusal to purchase the stock for $2,850,000. On December 15, 1976, plaintiff chose to exercise his right and the following day defendant was notified that the executor, having deemed plaintiff’s exercise proper, had accepted it.

On January 21, 1977, plaintiff advised the executor that his application for a loan from one of the financial sources he had been working with had been turned down. On that same day, defendant made a new offer to purchase the stock for $2,950,-000. Three days later, on January 24, 1977, the executor told plaintiff that plaintiff’s right to consummate the stock purchase was being terminated. Immediately thereafter, defendant’s January 21st offer was accepted.

On January 26, 1977, plaintiff sent a letter to the executor asserting the continued existence of his right to purchase the stock and objecting to the acceptance of defendant’s new offer. Plaintiff then began a civil action in St. Clair County both to enjoin the sale of the Smith stock to defendant and for a construction of Prichard’s will granting plaintiff the right to purchase the stock. On February 28, 1977, the St. Clair Probate Court entered an order holding that Prichard’s will granted plaintiff a right of first refusal to purchase the Smith stock. In a separate order of the same date, the court enjoined the sale of the stock to any party other than plaintiff.

Appeal was taken from the two probate court' orders to the St. Clair Circuit Court by defendant. On December 30, 1977, the circuit court affirmed the probate court orders. Defendant appeals by leave granted and plaintiff cross-appeals on a procedural issue.

On cross-appeal plaintiff has challenged defendant’s standing to appeal the probate court orders under review.

Defendant’s standing in the probate court was recognized by that court. PCR 109.2 permits a probate court to make a specific determination as to interested parties who are not defined by statute or court rule and since plaintiff did not cross-appeal from that ruling to the circuit court we may not review the probate court’s recognition of defendant. Plaintiff did, however, move the circuit court to dismiss defendant’s appeal on the ground that defendant lacked standing to áppeal from the probate court orders because it was not a "person aggrieved” within the meaning of MCL 701.45a; MSA 27.3178(45.1).

A definition of an "aggrieved person” was stated by the Supreme Court in In re Estate of Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936):

"To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency.”

The facts of this case present an unusual situation. Defendant has in good faith entered into a seemingly binding contract for the purchase of the Smith stock. But for the probate court orders the contract could have been executed. We conclude, therefore, that defendant should be regarded as a person aggrieved and that the circuit court did not err in denying plaintiff’s motion to dismiss.

In its appeal to this Court, defendant contends that the lower courts erred when they found plaintiff had continued in Prichard’s employ until Prichard’s death and had thus garnered a right to purchase the Smith stock. Defendant argues that although plaintiff may have returned to Smith before Prichard’s death, plaintiff’s actions caused a hiatus in his employment at Smith which prevented him from being in Smith’s continuous employ. Defendant further argues that plaintiff’s attempt at rescinding the resignation was ineffective because proper notice for the May 6, 1976, board of directors meeting was not given as provided in the Smith bylaws aind as mandated by MCL 450.1521(2); MSA 21.200(521X2).

At the request of the Court, the parties submitted supplemental briefs on the issue of whether defendant has standing to challenge the validity of the May 6, 1976, meeting of Smith’s board of directors. The purpose of the meeting was to act on the resignation of plaintiff. At the meeting a board member moved to decline plaintiff’s resignation. The motion was not acted upon, as plaintiff undertook to withdraw his resignation.

The meeting was held without proper notice and outside the presence of the director who was the corporation’s sole stockholder, Prichard. Had one of the directors objected the actions taken at the meeting would have been voided. However, no objection to the meeting has been made by any of the directors.

Because of the interrelation of plaintiff’s right of first refusal and defendant’s contractual right to purchase the Smith stock, we believe that, had the actions taken at the May 6th meeting been voided by any of the directors, defendant could have interposed that fact in support of its position that plaintiff did not acquire a right of first refusal. However, we do not believe that defendant’s objection to the conduct of the meeting will itself void the meeting or the actions taken therein.

It is uncontested that the will provision in question is a condition precedent to the vesting of a right of first refusal in plaintiff. Prichard’s Will provides that plaintiff’s right will vest if plaintiff "continues in my [Prichard’s] employ until the time of my death * * The probate court did not expressly address the meaning of the phrase "continues in my employ”. However, at a February 10, 1977, hearing the court made the following finding:

"It is my finding [plaintiff] was an employee of the Earl Smith, Inc., from the time of making the Will until Mr. Prichard’s death; and I don’t know if he was an officer all that time.”

Thus the probate court found that plaintiff had been continuously employed at Smith and had satisfied the most restrictive possible construction of the will provision, whether or not this restrictive construction was intended by Prichard.

After having reviewed this matter, we cannot say that the probate court erred in its finding of fact. Plaintiff maintained a continued commitment to Smith. He attended a series of corporate meetings during the period from May 1, 1976, the date of his letter of resignation, to May 6, 1976, the date of Prichard’s death. Plaintiff participated in two telephone calls and two board meetings relative to Smith business. He was continuously paid by Smith during the period in question and no benefits were withheld from plaintiff as an employee.

Having concluded that the lower courts did not err in recognizing in plaintiff a right of first refusal to purchase the Smith stock we next consider whether the lower courts were correct in enjoining the sale of the stock to anyone other than plaintiff. In this we focus on the reasonableness of the actions taken by the executor in terminating plaintiff’s right and entering the January 24, 1977, contract with defendant.

The executor had recognized plaintiffs testamentary right of first refusal. Though there was no written contract between plaintiff and the executor they could both expect that the sale would take place within a reasonable time. Some 40 days, as well as the first deadline set by the executor for closing with plaintiff, passed between the executor’s acceptance of plaintiffs notice of his intention to exercise his right and the day the executor informed plaintiff that he intended to accept defendant’s bid for the Smith stock. There is no indication that the executor acted in bad faith nor is there any reason to believe that the executor acted with undue haste in terminating plaintiffs right of first refusal. The executor was charged with administering the Prichard estate and with selling the Smith stock. In accordance with Prichard’s intent, as perceived by the executor, the Stock was first offered to plaintiff. We do not believe that it was proper to enjoin the sale of the stock to anyone other than plaintiff after the executor determined that plaintiffs right of first refusal should be terminated. Injunctive relief is an extraordinary remedy which issues only when justice requires and it should not have been granted under the circumstances of this case.

Accordingly, the injunction issued by the probate court is lifted and the contract for the sale of the Smith stock between defendant and the executor of Prichard’s estate is recognized.

The cause is reversed. Costs to defendant.

N. J. Kaufman, J.

(concurring). I agree with the sound reasoning and rationale employed by Judge Gillis in his well-written opinion. However, I must disagree with his ultimate conclusion and concur in the result reached by Judge Burns. Both opinions correctly point out that the- executor had accepted petitioner’s right of first refusal on December 15, 1976. Thereafter, on January 21, 1977, petitioner notified the executor that he could not exercise his priority, as one of his financial backers withdrew. At this point, in my opinion, the petitioner’s priority rights terminated. If the petitioner had requested a time extension of the executor or presented assurances of performance to him, the parties could have provided for the continuance of petitioner’s priority for a reasonable time. Absent such measures, I do not consider the actions taken by petitioner sufficient to preserve his preemptive position.

I too would reverse.

J. H. Gillis, P.J.

(dissenting). I concur with the majority’s conclusion that the lower courts did not err in recognizing in petitioner a right of first refusal to purchase the Smith stock. I, however, cannot agree that the lower courts clearly erred in finding that the executor had not extended a reasonable time within which to exercise petitioner’s option.

Where no time for exercising a testamentary option to purchase property is fixed by the will, the option must be exercised, if at all, within a reasonable time. 96 CJS, Wills, § 1104; 80 Am Jur 2d, Wills, § 1481. What constitutes a reasonable time depends on the circumstances of the particular case. Anno: Time in which option created by will to purchase real estate is to be exercised, 82 ALR3d 790, § 4, p 795.

In the present case, both lower courts found that petitioner had not exceeded the reasonable time within which he was required to exercise his option as of the date of the executor’s termination of petitioner’s right and his acceptance of respondent’s offer.

An appellate court must give due deference to the findings of a lower court. An appellate court will not set aside a finding of fact of a lower court unless such finding is clearly erroneous. Smith v Michigan State Accident Fund, 403 Mich 201; 267 NW2d 909 (1978). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).

The parties do not dispute the timeliness of petitioner’s notice of his intention to exercise his right. The question presented is whether a reasonable time within which to consummate the transaction had passed by January 24, 1977. I would hold that it had not.

I begin by noting that the testamentary provision in question herein provides in relevant part:

"Payment shall be made by the said RONALD C. MURRELL upon such terms and conditions as my executor and the said RONALD C. MURRELL shall mutually agree.” (Emphasis supplied.)

I further note that a mutually established closing date was never set. December 31, 1976, was the date as of which the executor intended to consummate the sale. January 15, 1977, was the executor’s target date for closing the transaction. There is no claim that petitioner agreed to either of these dates. A finding that petitioner failed to consummate the transaction within a reasonable time cannot be predicated upon his failure to comply with these unilaterally set tentative closing dates.

An examination of the following facts necessitates the conclusion that the lower courts did not clearly err in finding that the executor had not extended petitioner a reasonable time. The amount of financing which petitioner had to secure in order to effect the purchase was $2,850,000. Petitioner was given 40 days within which to arrange such financing. I would hold that 40 days is not a reasonable time within which to require one to secure financing in that large sum. The amount of money involved, alone, supports the lower courts’ determination that petitioner was not extended a reasonable time.

Moreover, I noté the following factors. On January 21, 1977, petitioner advised the executor that his application for a loan from one financial source had been turned down. The executor was aware of the fact that petitioner was seeking financing from several lending institutions. Furthermore, respondent’s offer of January 20, 1977, was in the amount of $2,950,000, $100,000 more than petitioner’s option price.

On the basis of the foregoing, I would find that the executor acted prematurely in terminating petitioner’s right. Injunctive relief is an extraordinary remedy which issues only when justice requires. Justice did so require under the circumstances of this case. The lower courts were correct in enjoining the sale of the stock to anyone other than the petitioner.

I would affirm.

       The stock of a second corporation owned by Prichard, Magra, Inc., was held by the probate court to be included within the sale of the Smith stock. That holding is not in dispute.

       On December 30, 1977, the circuit court also entered an order denying defendant’s petition for enforcement of a settlement agreement. This second order is appealed by defendant but because of our disposition of defendant’s appeal of the first circuit court order we do not rule upon this issue. However, we note that we have found several indications in the transcript of the hearing regarding the alleged settlement agreement which support the circuit court’s conclusion that though the matter was "99.9% agreed upon by the parties” no binding settlement had been reached. Furthermore, we would be reluctant in this situation to overturn the finding of the circuit court judge who was present at the chambers conference at which the settlement was discussed and who was thereby in the best position to grasp the nuances of the discussion.


text:
    COTTER v BLUE CROSS AND BLUE SHIELD OF MICHIGAN
    Docket No. 78-1957.
    Submitted October 9, 1979, at Detroit.
    Decided December 5, 1979.
    Leave to appeal applied for.
    Robert Cotter, Nancy Cotter and Shirley Vasileff, representing all Blue Cross and Blue Shield of Michigan subscribers, brought a class action in Wayne Circuit Court against Blue Cross and Blue Shield of Michigan and against Thomas Jones, in his capacity as Insurance Commissioner, seeking to enjoin Blue Cross and Blue Shield from excluding from its insurance coverage certain services rendered by chiropractors. Horace W. Gilmore, J., entered an order enjoining Blue Cross and Blue Shield from excluding from coverage the services in quesion. After a show cause hearing, Judge Gilmore ordered the matter referred to the Insurance Commissioner. The Commissioner held a full hearing as ordered and then issued an order prohibiting Blue Cross and Blue Shield from reimbursing its subscribers for the services in question. Subsequently, the defendants’ motions for summary judgment were granted and the temporary injunction was dissolved. Plaintiffs appeal, alleging that 1) the circuit court did not have primary jurisdiction to decide the case, and 2) the trial court erred in making its own determination of the scope of chiropractic. Held:

    1. The Michigan State Board of Chiropractic Examiners was not authorized by statute to define the scope of chiropractic. The trial court properly exercised jurisdiction over the matter.
    2. Statute interpretation is a legal question and is therefore a matter for the court. There are prior cases determining the scope of chiropractic which have determined that the practices in question were not within the scope of chiropractic. Based upon case precedent, the plaintiffs had failed to state a claim upon which relief could be granted and summary judgment for defendants was proper.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law §§ 788, 791.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 23.

       73 Am Jur 2d, Statutes § 142.

       61 Am Jur 2d, Pleadings § 229 et seq.

    73 Am Jur 2d, Summary Judgment §§ 5, 29.

      Affirmed.
    1. Administrative Law — Courts — Doctrine of Primary Jurisdiction.
    The doctrine of primary jurisdiction for an administrative agency is invoked where the agency has been authorized by statute to determine factual issues raised in the pleadings.
    2. Physicians and Surgeons — Chiropractic Act — Scope of Practice — Chiropractic Board.
    The scope of chiropractic practice was defined by the now repealed chiropractic act and the chiropractic board was without authority to expand that definition by resolution.
    3. Statutes — Statutory Interpretation — Legal Questions —- Matters for the Court.
    Statute interpretation is a legal question and is therefore a matter for the court.
    4. Motions — Summary Judgment — Failure to State a Claim — Sufficiency of Pleadings — Contracts — Court Rules.
    A motion for summary judgment on the ground that plaintiff failed to state a claim upon which relief can be granted challenges the legal sufficiency of the pleadings alone and is to be tested by whether, accepting all well-pleaded facts as true, the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery; however, in an action based upon a contract the court may examine the contract in conjunction with the motion for a summary judgment.
    5. Physicians and Surgeons — Chiropractic Act — Nonchiropractic Services — Public Health Code.
    Emergency first aid services for nonspinal injuries, diagnostic x-rays of other than the spine ordered and/or performed by a chiropractor, nonspinal medicad emergencies, blood handling and diagnostic laboratory services ordered and/or performed by a chiropractor were practices not within the scope of chiropractic under the chiropractic act which was repealed with the enactment of the Public Health Code (MCL 338.156; MSA 14.596, now repealed).

      Durant & Durant, P.C., for plaintiffs.

      Foster, Swift, Collins & Coey, P.C. (by Theodore W. Swift and David VanderHagen), for defendant Blue Cross and Blue Shield.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harry G. Iwasko, Jr., and Judith I. Blinn, Assistants Attorney General, for defendant Insurance Commissioner.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   V. J. Brennan, J.

On July 1, 1977, the plaintiffs, representing all Blue Cross and Blue Shield of Michigan (BC/BS) subscribers, filed a class action in Wayne County Circuit Court. An ex parte restraining order to show cause was issued on July 1, 1977. The order enjoined BC/BS from excluding certain services rendered by chiropractors from insurance coverage. A show cause hearing was held on July 8, 1977. An order was entered on August 30, 1977, referring the matter to the defendant Thomas Jones, in his capacity as Insurance Commissioner.

The Commissioner held a full hearing on the matter on October 12, 1977, as ordered. The plaintiffs and BC/BS were present and were allowed to present evidence. On January 31, 1978, Jones issued an order prohibiting BC/BS from reimbursing subscribers for the services in question.

The defendants brought motions for summary judgment in Wayne County Circuit Court. On March 21, 1978, the defendants’ motions for summary judgment were granted and the temporary injunction was dissolved. A judgment to that effect was entered on April 20, 1978. The plaintiffs now appeal this judgment.

Under the terms of the plaintiffs’ contract with BC/BS, services rendered by physicians are reimbursable under certain conditions. The contract defines the term "physician” as follows:

"A 'Physician’ is a doctor of medicine or osteopathy legally qualified and licensed to practice medicine and perform surgery at the time and place surgeries are performed. For the purposes hereof, a podiatrist, as defined in Act 115 Public Acts Michigan 1915 as amended and licensed thereunder, or licensed under similar Acts of other States wherein services are performed, or a doctor of chiropractic as defined in Act 145 Public Acts Michigan 1933 as amended and licensed thereunder, or licensed under similar Acts of other States wherein services are performed, will be deemed to be a physician if and to the extent that he shall render services hereunder which he is legally qualifíed to perform under said Act. ” (Emphasis added.)

Section 6 of the chiropractic act establishes the lawful scope of chiropractic practice in Michigan:

"Sec. 6 * * * for the purpose of this act chiropractic is defined as 'the locating of misaligned or displaced vertebrae of the human spine, the procedure preparatory to and the adjustment by hand of such misaligned or displaced vertebrae and surrounding bones or tissues, for the restoration and maintenance of health.’ A licensed doctor of chiropractic under this act may use x-ray and such analytical instruments as are approved by the Michigan board of chiropractic examiners in the examination of patients solely for the purpose of locating misaligned or displaced vertebrae of the human spine and for the procedures preparatory thereto.” MCL 338.156; MSA 14.596._

The basis for the complaint is that the defendants BC/BS sent a notice to the plaintiffs and all other subscribers stating that the following services performed by chiropractors would be excluded from coverage commencing July 1, 1977:

"1. Emergency first-aid services for non-spinal injuries.
"2. Diagnostic x-rays of other than the spine ordered and/or performed by a chiropractor.
"3. Medical emergencies (non-traumatic) of any type.
"4. Blood handling charges.
"5. Diagnostic laboratory services ordered and/or performed by a chiropractor.”

The complaint alleges that exclusion of these benefits would reduce the choice of medical care available to the plaintiffs in violation of the statute regulating medical care insurance corporations, MCL 550.301, et seq.; MSA 24.591, et seq. The plaintiffs also allege in the complaint that these changes unilaterally changed the conditions of their contract with BC/BS, thereby raising the rates that plaintiffs paid for the services which are covered.

The key issue is whether or not chiropractors are authorized under the Chiropractic Act to perform the services that BC/BS wishes to exclude from coverage. If a chiropractor may legally perform those services outlined in the statement of facts, BC/BS is obligated under the contract to reimburse its subscribers for those services. If chiropractors are not authorized to perform those services, a chiropractor performing those services does not fall within the contract definition of "physician”. In that case, BC/BS is not obligated under the contract to pay for those services.

The lower court granted summary judgment based upon the failure to state a claim upon which relief could be granted. Therefore, GCR 1963, 117.2(1) is the controlling court rule. The plaintiffs allege that the lower court considered the wrong information when granting summary judgment under GCR 1963, 117.2(3), which allows for summary judgment where there is no genuine issue of a material fact. As the judgment was granted under the other subrule, these allegations of error are without merit.

The plaintiffs also allege that the lower court did not have primary jurisdiction to decide the case. They assert that the Michigan State Board of Chiropractic Examiners has primary jurisdiction to interpret the Chiropractic Act and define the parameters of the profession. The doctrine of primary jurisdiction is invoked where the regulatory agency has been authorized by statute to determine factual issues raised in the pleadings. Far East Conference v United States, 342 US 570, 574, 575; 72 S Ct 492; 96 L Ed 576 (1952), cited with approval in Attorney General v Raguckas, 84 Mich App 618, 621-622; 270 NW2d 665 (1978). The board is not authorized under the statute to define the scope of chiropractic. The same issue was addressed in Attorney General v Recorder’s Court Judge, 92 Mich App 42, 57; 285 NW2d 53 (1979), where the Court said,

"The scope of chiropractic was defined by statute, and the board was without authority to expand that definition by resolution.”

See also, Attorney General v Raguckas, at 622.

Finally, the plaintiffs allege that the trial court erred in making its own determination of the scope of chiropractic. The plaintiffs again allege that the board has primary jurisdiction and that the lower court did not possess the requisite technical knowledge to ascertain what is or is not included within the scope of chiropractic. This allegation of error is also without merit. The Court in both Raguckas and Recorder’s Court Judge disagreed with the board’s interpretation of the scope of chiropractic and went on to interpret the statute as not including the services in question. Statute interpretation is a legal question and is therefore a matter for the court.

GCR 1963, 117.2(1) states that the movant is entitled to summary judgment in his favor when the opposing party has failed to state a claim upon which relief can be granted. A motion based on GCR 1963, 117.2(1) challenges the legal sufficiency of a plaintiff’s complaint and is to be considered by an examination of the pleadings alone. It is the duty of the reviewing court to accept as true the well-pleaded facts in the plaintiff’s complaint and determine whether those claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Koenig v Van Reken, 89 Mich App 102, 104; 279 NW2d 590 (1979). In a case based upon contract, as here, the court may examine the contract in conjunction with the motion for summary judgment. Soloman v Western Hills Development Co, 88 Mich App 254, 256; 276 NW2d 577 (1979).

We find that the lower court judgment is not erroneous. Based upon past interpretation of this very statute by this Court, the statute is to be construed strictly. There is Court of Appeals authority for the lower court’s determination that some of the practices are not within the scope of chiropractic. Raguckas, supra, Recorder’s Court Judge, supra. The remaining two practices involving emergencies are also not within the scope of chiropractic, unless they involve the spine. Therefore, the summary judgment is affirmed.

No costs, a public question being involved.

       The definition of chiropractic was changed subsequent to the events in this case. The new definition is contained in § 16401 of the Public Health Code, effective September 30, 1978. It reads:
      “(a) 'Chiropractor’, 'chiropractic physician’, 'doctor of chiropractic’, or 'd.c.’ means an individual licensed under this article to engage in the practice of chiropractic.
      "(b) 'Practice of chiropractic’ means that discipline within the healing arts which deals with the nervous system and its relationship to the spinal column and its interrelationship with other body systems. Practice of chiropractic includes:
      "(i) Diagnosis, including spinal analysis, to determine the existence of spinal subluxations or misalignments that produce nerve interference, indicating the necessity for chiropractic care.
      "(ii) The adjustment of spinal subluxations or misalignments and related bones and tissues for the establishment of neural integrity utilizing the inherent recuperative powers of the body for restoration and maintenance of health.
      "(iii) The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to section 16423, and the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. The practice of chiropractic does not include the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine.
      "(2) In addition to the definitions in this part, article 1 contains general definitions and principles of construction applicable to all articles in this code and part 161 contains definitions applicable to this part.” MCL 333.16401; MSA 14.15(16401).


author: Cynar, P.J.

text:
    PEOPLE v FERGUSON PEOPLE v PRATT
    Docket Nos. 78-2663, 78-5170.
    Submitted June 21, 1979, at Lansing.—
    Decided December 5, 1979.
    Leave to appeal applied for.
    Elmer Ferguson and Willie V. Pratt were each convicted in a joint trial of possession of a controlled substance with intent to deliver, Saginaw Circuit Court, Eugene Snow Huff, J. Both defendants appealed, and the appeals were consolidated. The defendants allege several errors. Held:

    1. Defendant Ferguson alleges that the trial court lost jurisdiction to try him because of violation of the rule that a prisoner must be brought to trial on outstanding charges within 180 days of the time the prosecutor is notified of the prisoner’s location. Ferguson was incarcerated 212 days before trial began, thus establishing a prima facie violation of the 180-day rule. However, the prosecution has shown a sufficient good faith effort to commence proceedings to avoid a finding of a violation of the 180-day rule.
    2. An affidavit upon which a search warrant was based sufficiently detailed the credibility of an unnamed informant and the reliability of the information presented to support the issuance of the search warrant.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 249-251.

       75 Am Jur 2d, Trial § 20 et seq.

       75 Am Jur 2d, Trial §§ 623, 624, 716.

       5 Am Jur 2d, Appeal and Error § 601.
    75 Am Jur 2d, Trial § 166.

       75 Am Jur 2d, Trial § 193.
    81 Am Jur 2d, Witnesses §§ 474-476, 484, 495-497.

       21 Am Jur 2d, Criminal Law §§ 219, 228.

       81 Am Jur 2d, Witnesses § 2.

       5 Am Jur 2d, Appeal and Error § 607 et seq.

    21 Am Jur 2d, Criminal Law §§ 227, 228.

       75 Am Jur 2d, Trial § 192 et seq.

    81 Am Jur 2d, Witnesses §§ 524, 525, 582, 593.

       75 Am Jur 2d, Trial § 491 et seq.

       25 Am Jur 2d, Drugs, Narcotics, and Poisons § 47.
    29 Am Jur 2d, Evidence § 266.

      3. Sufficient evidence was presented at the preliminary examination to bind each of the defendants over for trial on the charge of possession of heroin with intent to deliver.
    4. A severance was not required in the absence of a showing that the defenses presented by Ferguson and Pratt were antagonistic or thát the joint trial prejudiced substantial rights of either defendant.
    5. The trial court did not err in refusing to instruct the jury on the lesser included offense of use of heroin. Because use of heroin carries a maximum punishment of no more than one year in prison and possession with intent to deliver is punishable by more than two years in prison, Supreme Court precedent precludes the giving of the instruction on use.
    6. Introduction into evidence of narcotics paraphernalia did not deny the defendants a fair trial, and the defendants’ failure to object to its introduction may be attributed to trial strategy.
    7. The prosecutor’s brief questioning regarding defendant Ferguson’s employment was arguably relevant to material matters at issue, no objection was raised at trial, and no manifest injustice has been shown.
    8. The defendants waived any right to compel the presence of two witnesses at trial where they failed to move for the indorsement and production of the witnesses even though they were aware of the witnesses’ identity well before trial. Also, because the two witnesses were accomplices of the defendants, the prosecution was not required to indorse and produce them.
    9. Failure of the defendants to move in the trial court for a new trial on the basis that the jury verdict was against the great weight of the evidence precludes appellate review on that issue.
    10. The defendants have failed to substantiate their claim that the prosecution purposely excluded blacks from the jury.
    11. Any prejudice which may have occurred when the prosecution accused defense counsel of unethical conduct was alleviated by a curative instruction by the court.
    12. The prosecutor’s gesticulations in closing argument, emphasizing the absence of a third codefendant who had absconded, was harmless error, if error at all.
    13. The prosecutor did not offer evidence of prior bad acts of defendant Ferguson by merely asking Ferguson if he had ever purchased heroin from the absent codefendant.
    14. Denial of the defendants’ motion for a directed verdict of acquittal was proper.
    Affirmed.

      1. Criminal Law — Incarcerated Defendants — 180-Day Rule — Statutes.
    A lapse of more than 180 days between the time a prosecutor learns that a defendant against whom there are outstanding charges is an inmate of a penal institution and the time of his trial establishes a prima facie violation of the statutory provision that trial is to be had in such a case within 180 days; in order to prevent the operation of the statute the prosecution must show good faith action on its part to ready the case for trial within the 180-day period (MCL 780.121; MSA 28.969[1]).
    2. Criminal Law — Trial — Severance — Antagonistic Defenses — Prejudice — Appeal and Error.
    Severance was not required where the defenses presented by codefendants were not antagonistic to one another and where there is no affirmative showing of prejudice to substantial rights of either defendant.
    3. Criminal Law — Instructions to Jury — Lesser Included Offenses.
    A trial court may not instruct a jury on a lesser-included offense which is punishable by a maximum of one year imprisonment where the greater offense with which a defendant is charged is punishable by incarceration for more than two years.
    4. Appeal and Error — Evidence — Lack of Objection — Manifest Injustice.
    Appellate review of the introduction of evidence at trial is precluded where no objection to the introduction of the evidence was made at trial, except where there is a showing of manifest injustice.
    5. Criminal Law —■ Cross-Examination — Defendant’s Employment.
    Questioning on cross-examination of a defendant regarding his employment at the time of the charged offense is improper unless the questioning is relevant to material matters at issue.
    6. Witnesses — Criminal Law — Indorsement of Witnesses — Waiver.
    A defendant who fails to make a timely motion for the indorsement and production of a witness whose identity is known well before trial waives any right the defendant may have had to the witness’s presence at trial.

      7. Witnesses — Criminal Law — Accomplices.
    A prosecutor is not required to indorse and produce at trial an accomplice of the defendant.
    8. Appeal and Error — Jury Verdict — Weight of Evidence — Motion for New Trial.
    Failure of a defendant to move for a new trial in the trial court on the ground that a jury verdict was against the great weight of the evidence precludes appellate review of that issue.
    9. Criminal Law — Prosecutors — Prior Bad Acts.
    A prosecutor who, in cross-examination, merely asks a defendant who is charged with possession of heroin with intent to deliver whether he has ever purchased heroin from another person does not thereby offer evidence of prior bad acts of the defendant which, if improperly admitted, would constitute prejudicial error.
    10. Criminal Law — Directed Verdicts — Evidence — Elements of Crime.
    Denial of a motion for a directed verdict of acquittal is proper if, viewing the evidence presented by the prosecution, there is sufficient evidence on each element of the crime charged upon which the jury could base a verdict of guilty beyond a reasonable doubt.
    11. Drugs and Narcotics — Evidence — Possession — Intent to Deliver.
    Possession and intent to deliver a controlled substance may be proved by circumstantial evidence and reasonable inferences drawn therefrom.
    12. Drugs and Narcotics — Intent to Deliver — Amount Possessed.
    Intent to deliver a controlled substance may be inferred from the amount of the controlled substance possessed by an accused.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, William D. White, Assistant Prosecuting Attorney, in Ferguson, and Linda Berns Wright, Assistant Prosecuting Attorney, in Pratt.

      Allsopp & Palacios, for defendant Ferguson.

      Joseph Samuel Scorsone, for defendant Pratt.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

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

   Cynar, P.J.

Defendant Ferguson was convicted by a jury of possession of a controlled substance with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and was sentenced to 8 to 20 years imprisonment. He appeals as of right.

Defendant Pratt was also convicted by a jury of possession of a controlled substance with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and sentenced to 6 to 20 years imprisonment. He too appeals as of right.

The evidence adduced at the joint trial of the defendants established the following facts.

On March 26, 1977, under authority of a search warrant, the Saginaw Police Department conducted a raid upon an apartment within the city. Upon arriving the officers involved looked through a living room window and saw two individuals sitting on a couch. As they knocked and announced their identity and purpose, they saw a third person exit the living room quite rapidly. Receiving no response from within, and concerned that narcotics were going to be disposed of, they obtained entry by using a battering ram.

The officers noticed that the bathroom door, visible from the living room, was open. Approaching the bathroom, they saw defendants Ferguson and Pratt, as well as codefendant Eugene Johnson, near the toilet. Pratt was holding a small vial which Ferguson pushed out of his hand, sending heroin onto the floor as well as into the commode.

Pratt was also found to be in possession of packets of heroin, while Ferguson had on his person a syringe, a spoon, and some currency. Johnson had scattered about the bathroom floor some $980 as well as a substantial quantity of heroin.

In the kitchen, the officers found narcotics paraphernalia, including aluminum foil and spoons, and discovered more heroin on the kitchen floor.

On appeal, defendants raise a host of issues. Initially, defendant Ferguson contends that the trial court lacked jurisdiction to try his case, because of noncompliance with the so-called 180-day rule on the part of the prosecutor. Specifically, Ferguson charges that the prosecution failed to take any affirmative steps to timely bring the case to trial, and thereby did not meet its burden of engaging in good faith action in this regard. In support of this assertion, he relies upon People v Hill.

In this case, Ferguson was sentenced on a prior charge May 16, 1977, and detained pending incarceration thereon, which began the running of the 180-day period under the standard articulated in People v Hill, supra, 280-281, as defendant had already been charged in the instant prosecution. Trial did not begin until December 13, 1977, some 212 days later. This establishes a prima facie violation of the 180-day rule, requiring the prosecution to show some good faith action on its part to ready the case for trial within the 180-day period. People v Hill, supra, 281, People v Wright, 89 Mich App 244, 250; 280 NW2d 836 (1979).

Whether this standard is satisfied is basically an ad hoc determination, arrived at by a review of the unique circumstances of the case. We find sufficient good faith action on the part of the prosecutor to ready the case for trial within the statutory period so as to satisfy the mandate of People v Hill.

Defendant Ferguson was arraigned on May 16, 1977, the same day he was sentenced on a prior charge. His trial counsel shortly thereafter filed two motions, to which the prosecutor responded promptly by brief and which were argued in May and June. On September 19, 1977, a trial notice was sent to him, with the trial date set for December 13, 1977. On November 18, 1977, Ferguson filed a motion to suppress evidence alleged to have been seized illegally, which motion was heard and denied November 28, 1977. Finally, on December 8, 1977, a writ of habeas corpus ad prosequendum was sought and issued, and trial commenced December 13.

We find these actions consonant with a good faith effort to commence the proceedings in a timely fashion. Each was directed at readying the case for trial, although some actions were taken in response to defense motions. As the bulk of these efforts took place within 180 days of the date the statutory period began to run, taken as a whole they are sufficient good faith action to meet the demands of People v Hill. Cf., People v Wright, supra, 252-253, People v Farmer, 16 Mich App 148, 151; 167 NW2d 597 (1969).

Defendants next attack the search warrant used to gain entry into and to search the apartment in which they were arrested. Defendants claim that the warrant was defective in that the supporting affidavit failed to detail adequately the credibility of an unnamed police informant and the reliability of the information which served as the basis for issuing the disputed warrant. We find this claim to be without merit.

The affidavit in this case is far more detailed than that found sufficient in either People v Jerry Johnson, 68 Mich App 697; 243 NW2d 715 (1976), or People v Thomas, 86 Mich App 752; 273 NW2d 548 (1978), and compares favorably with the affidavit found sufficient in People v Davis, 72 Mich App 21; 248 NW2d 690 (1976). Therefore, the search warrant was properly issued.

We find no substance in defendants’ contention that there was not sufficient evidence established at the preliminary examination to bind each of the defendants over for trial on a charge of possession of heroin with intent to deliver. People v Wirth, 87 Mich App 41, 47; 273 NW2d 104 (1978). People v Tolbert, 77 Mich App 162, 165; 258 NW2d 176 (1977).

Likewise unsubstantial is the claim that the trial court should have sua sponte ordered separate trials of the two defendants. There has been no showing that the defenses presented by Ferguson and Pratt were in fact antagonistic, nor has there been an affirmative showing of prejudice to substantial rights of either defendant. Thus, a severance was not required. People v Miller, 88 Mich App 210, 222; 276 NW2d 558 (1979), and the cases cited therein.

Nor do we find reversible error in the trial court’s refusal to instruct on the lesser-included offense of use of heroin, MCL 335,341(5)(a); MSA 18.1070(41)(5)(a). Since the offense of use carries a maximum punishment of imprisonment for not more than one year, and the charged offense of possession with intent to deliver is punishable by incarceration for more than two years, the instruction on use could not be given under the rule expounded in People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), even though the trial court had agreed to do so prior to closing arguments of counsel.

Following argument by counsel and before the jury was instructed, the prosecution brought the Chamblis rule to the court’s attention. Defense counsel had already argued to the jury that the defendants were mere users, and that this was a lesser offense upon which the judge would later instruct. Upon being advised of the Chamblis proscription, the trial judge informed counsel that he would not instruct on use. In response to defense counsel’s protestations, the court opined that omitting the requested instruction could only inure to defendants’ benefit, since, if the jury concluded that defendants were mere users, they could not be convicted of any offense. We find that the trial judge’s actions did not operate to deny defendants a fair trial and due process of law. But see the plurality opinion in People v Patskan, 387 Mich 701, 710; 199 NW2d 458 (1972).

Additionally, had the trial judge not followed Chamblis, he would have committed reversible error by instructing on use of heroin. People v Chamblis, supra, 429, People v Choate, 88 Mich App 40, 48; 276 NW2d 862 (1979).

Defendants failed to object to the introduction of narcotics paraphernalia at trial; therefore, appellate review regarding alleged error is precluded absent manifest injustice. People v Alexander, 72 Mich App 91, 99; 249 NW2d 307 (1976). We find no manifest injustice here. The evidence was consonant with defendants’ defense that they were merely users of heroin, and thus the failure to object can reasonably be attributed to trial strategy. For the same reason, the admission of the evidence did not deny defendants a fair trial.

As both defendants admitted to being users of heroin, the brief questioning by the prosecution regarding defendant Ferguson’s employment on the date of the offense was at least arguably relevant to material matters at issue. Cf., People v John Moore, 78 Mich App 150, 156; 259 NW2d 403 (1977), People v Thomas Jones, 73 Mich App 107, 110; 251 NW2d 264 (1976). In addition, no objection was raised at trial, and under the circumstances manifest injustice is not presented. People v John Moore, supra, 156. Therefore we decline to find reversible error.

Defendants failed to move for the endorsement and production of two individuals present in the apartment at the time they were arrested until after the prosecution rested its case. By failing to make a timely motion for the endorsement and production of the missing witnesses, even though aware of their identity well prior to trial, defendants waived any right they may have had to the witnesses’ presence at trial. People v Harrison, 75 Mich App 556, 558-559; 255 NW2d 682 (1977), People v Parsons, 59 Mich App 79, 86-87; 228 NW2d 852 (1975).

Alternatively, we conclude that the evidence presented at trial indicates that the two missing witnesses were uncharged accomplices. Therefore, their endorsement and production by the prosecution was not required. People v Threlkeld, 47 Mich App 691, 694-696; 209 NW2d 852 (1973), People v John Moore, supra, 154.

Defendants’ claim that the jury verdict was against the great weight of the evidence is not properly before this Court, as defendants failed to move for a new trial on that ground in the court below. People v Turner, 62 Mich App 467, 470; 233 NW2d 617 (1975).

Next, defendants cite a number of instances of alleged prosecutorial misconduct which, they argue, denied them a fair trial.

First, defendants contend that it was error for them to be tried by a jury with no blacks on it. They charge the prosecution with a design to exclude all blacks from the jury. A review of the record fails to substantiate defendants’ claim of purposeful discrimination. As they have failed to prove their allegation, we decline to reverse on this ground. People v Sanders, 58 Mich App 512, 515-516; 228 NW2d 439 (1975).

Any prejudice which may have occurred when the prosecutor accused defense counsel of unethical conduct for failing to properly authenticate a photograph shown to a prosecution witness was alleviated by the court’s curative instruction.

Further, we find the error, if any, occasioned by the prosecutor’s gesticulations in closing argument emphasizing the absence of codefendant Johnson from trial to be harmless beyond a reasonable doubt, under the two-tiered test found in People v Christensen, 64 Mich App 23, 32-33; 235 NW2d 50 (1975).

Defendant Ferguson argues that reversible error occurred when the prosecutor asked him on cross-examination whether he had ever purchased heroin from Eugene Johnson, a codefendant. Defendant complains that this was an impermissible offering of evidence of other unrelated prior bad acts without foundation or proof. We reject this contention. Ferguson denied ever having purchased heroin from Johnson, and the prosecutor then ceased questioning on the subject. We find that the mere asking of such a question does not constitute the offering of "evidence” of prior bad acts which would constitute prejudicial error if improperly admitted. It is more in the nature of an attempt to elicit an admission of guilt from defendant while he is on the stand. See generally, People v Wilkins, 82 Mich App 260, 265-271; 266 NW2d 781 (1978).

Finally, defendants argue that their motion for a directed verdict of acquittal on the charge of possession of heroin with intent to deliver was improperly denied, as there was not sufficient evidence of intent to deliver presented to justify submission of the question of defendants’ guilt or innocence on the charge to the jury. We disagree with defendants.

It is proper to deny a motion for a directed verdict of acquittal if, viewing the evidence presented by the prosecution, there is sufficient evidence on each element of the charge upon which the jury could base a verdict of guilty beyond a reasonable doubt. People v Royal, 62 Mich App 756, 757-758; 233 NW2d 860 (1975), People v Scott, 72 Mich App 16, 19; 248 NW2d 693 (1976), inter alia. This rule applies where the evidence of guilt is circumstantial. People v Edgar, 75 Mich App 467, 474; 255 NW2d 648 (1977).

When the police entered the apartment, they found the three defendants in the bathroom. Ferguson and Pratt were standing next to the toilet. Pratt had a vial of heroin in his hand which Ferguson shoved, causing heroin to spill onto the floor and into the commode. Johnson, standing nearby, threw a large quantity of money on the floor. A large quantity of heroin was recovered from the bathroom floor, the commode, and the kitchen floor. Packets of heroin were taken from the person of defendant Pratt, and residue was found on narcotics paraphernalia in the possession of the defendants. Also recovered were the various paraphernalia including spoons, caps, a plate, glassine containers, and small vials. A total of 10.3 grams of heroin possessing a purity of from 5% to 11% was retrieved. Both defendants admitted to being heroin users.

Defendants clearly were in possession of the heroin. People v Maliskey, 77 Mich App 444, 453; 258 NW2d 512 (1977), cf., People v Ridgeway, 74 Mich App 306, 316; 253 NW2d 743 (1977). Both possession and intent to deliver may be proved by circumstantial evidence and reasonable inferences drawn therefrom. People v Tolbert, supra, 165. Intent to deliver may be inferred from the amount of controlled substance possessed by an accused. People v Abrego, 72 Mich App 176, 181; 249 NW2d 345 (1976). In this case, the amount possessed was five times the amount found sufficient to allow the drawing of an inference of intent to deliver in Abrego. We conclude that both the circumstantial and direct evidence in this case and reasonable inferences taken therefrom are sufficient to allow the drawing of an inference of intent to deliver.

Finding no error requiring reversal, we hereby affirm.

Affirmed.

       Repealed by 1978 PA 368, effective September 30, 1978. For current provisions, see MCL 333.7401; MSA 14.15(7401).

       MCL 780.131 et seq.; MSA 28.969(1) et seq., which provide in pertinent part:
      "Sec. 1. Whenever the department of corrections shall receive notice that there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.
      "Sec. 2. The department of corrections shall notify each prisoner of any request forwarded under the provisions of section 1 of this act.
      "Sec. 3. In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

       402 Mich 272; 262 NW2d 641 (1978).

         The Court in People v Hill stated:
      "We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:
      "1) The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;
      “2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
      "3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.” Id., 280-281.

       The affidavit reads in relevant part as follows:
      "The affidavit and complaint on oath and in writing of Reed L. Vaughn, of the City of Saginaw, County of Saginaw, State of Michigan. Taken and made before me, Bruce J. Scorsone, a District Judge for the 70th Judicial District of the State of Michigan, and Upon the 25th day of March, A.D. 1977, who being by me duly sworn, says that the premises owned or occupied by an unknown negro male known as 3006 Douglas Street, Saginaw, Michigan, and described as a two story multi-family dwelling, being green in color with yellow trim on windows. In particular the downstairs apartment known as 3006 Douglas Street, Saginaw, County of Saginaw, State of Michigan. The entrance being on the west side of house facing Douglas Street, is presently being used to illegally store Heroin particularly at the above named address.
      "The facts which I know personally are as follows: That on or about the 25th day of March 1977 affiant was in contact with an informant known as 1-570. 1-570 advised affiant that heroin was being stored and sold at the above named address and that 1-570 could purchase heroin from the above named address. 1-570 was searched by affiant and found to have no United States currency or heroin on 1-570’s person. 1-570 was given a sum of United States Currency by affiant with the instructions to go to the above named address and purchase heroin for the affiant. While under the direct surveillance of the affiant 1-570 was observed to enter the above named address. A short time later I-570 was observed to exit the above named address and met affiant at a predetermined location. At this time 1-570 turned over to affiant a silver foil packet containing a brown powder substance which the I-570 purchased with the understanding that the substance was heroin. 1-570 was again searched by affiant and found to have no United States Currency or heroin on 1-570’s person.
      "A short time later a field test was conducted on the brown powder substance by affiant and a positive reaction for heroin was present.
      "The information from the informant is reliable because 1-570 has given affiant and other members of the Saginaw Police Vice Section information on narcotics and non-narcotics operations in the City of Saginaw in the past. 1-570 has made at least three controlled purchases of narcotics for affiant and all information and purchases have been reliable and true.
      "The informant states that heroin is being stored and sold at 3006 Douglas Street, Saginaw, Michigan.”

       Ferguson’s defense was that no drugs were shown to have been found on his person, and that he was only a user. Pratt’s defense was that there was not a sufficient amount of heroin to infer intent to deliver, and that he was a user only. These defenses are only different, not antagonistic.

       Codefendant Johnson absconded after the first day of trial. During closing argument, the prosecutor walked from the podium, and looked under the table where his attorney was seated, but said nothing about Johnson’s absence.


text:
    PEOPLE v WIMBUSH
    Docket No. 78-2722.
    Submitted October 9, 1979, at Detroit.
    Decided December 5, 1979.
    Dennis Wimbush was convicted, on his pleas of guilty, of armed robbery and possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, James A. Hathaway, J. Defendant appeals. Two issues are presented: (1) whether the felony-firearm statute is constitutional, and (2) whether one not in actual possession of a firearm may aid and abet a person who violates the felony-firearm statute. Held:
    1. Each of the statutes, armed robbery and felony-firearm, requires proof of a fact which the other does not; therefore, convicting a defendant of armed robbery does not violate the rule against double punishment. The felony-firearm statute is constitutional.
    2. One not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm during the commission of a felony.
    Defendant’s conviction under the felony-firearm statute is affirmed.
    1. Criminal Law — Constitutional Law — Double Jeopardy — Firearms — Armed Robbery — Felony-Firearm — Statutes.
    Convicting a defendant of armed robbery and of carrying or possessing a firearm during the armed robbery does not violate the rule against double punishment; each of these criminal statutes legally requires proof of a fact which the other does not (MCL 750.227b, 750.529; MSA 28.424[2], 28.797).
    2. Criminal Law — Weapons — Felony-Firearm — Common Enterprise — Aiding and Abetting •— Statutes.
    An accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm where it is shown that he knowingly acted or encouraged, with an intent to aid, the possessor to obtain or retain possession of, or to use the firearm during the course of a felony; therefore, one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm (MCL 767.39; MSA 28.979).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 183, 188.

       21 Am Jur 2d, Criminal Law §§ 118-120.
    67 Am Jur 2d, Robbery §§ 8, 9.

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

      Hoffa, Chodak & Robiner, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   V. J. Brennan, J.

Defendant, Dennis Wimbush, pled guilty to charges of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant appeals of right the felony-firearm conviction.

Two issues are presented on appeal: (1) whether the felony-firearm statute is constitutional, and (2) whether one not in actual possession of a firearm may aid and abet a person who violates the felony-firearm statute.

The Supreme Court has recently disposed of the first issue, upholding the constitutionality of the felony-firearm statute in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

The second issue is one which has divided different panels of this Court. Cf., People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Perry, 92 Mich App 732; 285 NW2d 217 (1979).

It is our opinion that the proper application of the aiding and abetting statute, MCL 767.39; MSA 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.

The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.

The aider and abettor statute provides that:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”

There is no language in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979). Further, the aider and abettor statute has been previously applied to possessory crimes. People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971).

Defendant’s conviction under MCL 750.227b; MSA 28.424(2) is affirmed.