author: N. J. Lambros, J. Bronson, J.

text:
    PEOPLE v HERNANDEZ
    Docket No. 29683.
    Submitted February 14, 1978, at Lansing.
    Decided June 6, 1978.
    Louis R. Hernandez was convicted in Saginaw Circuit Court, Joseph R. McDonald, J., of delivery of heroin. The alleged delivery took place between defendant and an undercover agent while two other people were present. Defendant raises many issues on appeal which the Court of Appeals considered seriatim; however, two major issues appear dispositive: (1) did the trial judge err by omitting from his instructions the requirement that defendant know the substance he was delivering was heroin, and (2) was the nonindorsement and nonproduction of res gestae witnesses grounds for reversal. Held:

    1. A trial judge does not err by omitting from his jury instructions the requirement that defendant know the substance he is delivering is heroin since this is not an essential element of the offense.
    2. Remand to the trial court is required where a defendant has not waived the production of a res gestae witness who has not been produced. The trial court must determine whether the people exercised due diligence in attempting to produce the witness. If so, defendant’s conviction should be affirmed; but if the trial court determines that the people did not use due diligence, and that the testimony of the witness was not merely cumulative, the trial court should reverse the conviction and order a new trial.

      References for Points in Headnotes
    [1-5] 21 Am Jur 2d, Criminal Law §§ 319, 321, 323.
    Constitutionally protested right of indigent accused to appointment of counsel in state court prosecution. 93 ALR2d 747.
    [3] 21 Am Jur 2d, Criminal Law § 320.
    [6] 75 Am Jur 2d, Trial §§ 574, 577, 578, 580, 906-916.
    Construction and effect of provision of Rule 51 of the Federal Rules of Civil Procedure, and similar state rules, that counsel be given opportunity to make objections to instructions out of the hearing of jury. 1 ALR Fed 310.
    [7, 8, 18] 75 Am Jur 2d, Trial §§ 715-720.
    [9] 5 Am Jur 2d, Appeal and Error §§ 623, 891.
    [10] 75 Am Jur 2d, Trial §§ 734-736.
    Duty of court, in absence of specific request, to instruct on subject of alibi. 72 ALR3d 547.
    [11] 81 Am Jur 2d, Witnesses § 2.
    [12-14] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    [15] 5 Am Jur 2d, Appeal and Error §§ 808, 843, 884.
    31 Am Jur 2d, Expert and Opinion Evidence § 3.
    [16] 5 Am Jur 2d, Appeal and Error § 624.
    [17] 5 Am Jur 2d, Appeal and Error § 549.

      Remanded for further proceedings.
    Bronson, J., concurred in the disposition of the case. While he would hold that knowledge of the character of a controlled substance is an essential element of the offense of delivery and that it is error to omit from jury instructions the requirement that defendant knows that the substance he is delivering is heroin, the failure to give the instruction in the present case does not require reversal because there was no manifest injustice; the defendant did not object to the instruction given nor raise any issue concerning his knowledge of the nature of the substance allegedly delivered.
    Opinion of the Court
    1. Criminal Law — Constitutional Law — Trial—Right to Counsel —Indigent Defendant — Attorney and Client — Substitution of Attorneys — Judge’s Discretion.
    An indigent defendant is not entitled to have the attorney of his choice appointed although he may become entitled to have his assigned attorney replaced on a showing of good cause if it would not unreasonably disrupt the judicial process; a decision regarding substitution of appointed counsel is in the trial court’s discretion.
    2. Criminal Law — Substitution of Counsel — Good Cause.
    There is no precise definition of good cause in the context of substitution of counsel, and the resolution of this issue must be found in the circumstances surrounding each case, particularly in the reasons presented to the trial judge at the time a request for substitution of counsel is made.
    3. Criminal Law — Attorney and Client — Assistance of Counsel —Lack of Preparation — Prejudice—Appeal and Error.
    The amount of time an attorney spends with his client is a factor used in determining whether he is adequately prepared to defend his client, but it is not the determinative factor; for purposes of appellate review, the more important issue is whether the defendant can show or allege that prejudice resulted from an inadequate preparation.
    4. Criminal Law — Constitutional Law — Attorney and Client— Substitution op Counsel — Continuance—Right to Counsel —Bona Fide Dispute — Prejudice.
    A trial judge’s decision on • a motion for a continuance for a substitution of counsel is governed by certain facts: (1) defendant was asserting a constitutional right — the right to counsel, (2) he had a legitimate reason for asserting this right — an irreconcilable bona fide dispute with his attorney, (3) he was not guilty of negligence, and (4) he had not caused the trial to be adjourned several times; on appeal, defendant must show that prejudice resulted where his motion for a continuance was denied.
    5. Attorney and Client — Disputes—Substitution op Attorneys— Public Policy.
    Public policy, where an attorney and client dispute is not irreconcilable, favors an attempt to work these problems out rather than always switching attorneys at the first sign of trouble.
    6. Criminal Law — Instructions to Jury — Essential Element — Request to Charge — Objections to Instructions — Appeal and Error.
    Reversible error is committed if a trial judge fails to instruct the jury on an essential element of an offense, even though there was no request for this instruction or any objections to the instructions given.
    7. Drugs and Narcotics — Delivery op Heroin — Knowledge op Substance — Essential Element — Statutes.
    Knowledge that one is delivering heroin is not an essential element of the offense of delivery because neither the statutory definition of delivery nor the provision proscribing it explicitly requires knowledge that the substance being delivered is heroin (MCL 335.304[1], 335.341[4]; MSA 18.1070[4][1], 18.1070[41][4],
    8. Drugs and Narcotics — Delivery of Heroin — Instructions to Jury — Knowledge of Substance — Essential Element.
    A trial judge does not commit error by omitting from his instructions the requirement that defendant know the substance he is delivering is heroin since this is not an essential element of the offense of delivery of heroin.

      9. Appeal and Error — Criminal Law — Instructions to Jury— Manifest Injustice — Failure to Object.
    Reversal of a defendant’s conviction on allegations of error in instructions, where no objection was made at trial, is not warranted absent a showing of a miscarriage of justice.
    10. Criminal Law — Defenses—Alibi—Instructions to Jury — Burden of Proof — Reasonable Doubt.
    An instruction to the jury on the defense of alibi which included a statement that the defense is proper and legal "if proven” does not shift the burden of proving alibi to the defendant where the instructions also clearly indicated that if any reasonable doubt existed as to the presence of defendant at the scene of the crime he should be acquitted.
    11. Witnesses — Criminal Law — Res Gestae Witnesses — Entire Transaction — False Accusations.
    Persons who are present when an alleged crime is committed are presumed to be res gestae witnesses, and since they are in a position to observe the transaction their testimony serves the purposes of presenting the entire transaction and protecting the accused from false accusations.
    12. Witnesses — Criminal Law — Res Gestae Witnesses — Indorsements — Exceptions.
    Res gestae witnesses are required to be indorsed and produced at trial except: where the prosecution shows due diligence in attempting to produce the witness, where the testimony of the missing witness would be merely cumulative, where the missing witness was a participant in the alleged crime, and where the identity of the res gestae witness is made known to the defendant during or before trial and the defendant does not move for indorsement or production of the witness.
    13. Witnesses — Criminal Law — Res Gestae Witnesses — Indorsement and Production — Miscarriage of Justice.
    Failure to indorse and produce a res gestae witness for trial cannot be excused because the identity of the res gestae witness was made known to the defendant during or before trial and defendant did not move for indorsement or production of the witness in instances where nonproduction would result in a miscarriage of justice, especially where the prosecutor already knew the name of the witness and had taken some steps to secure his production.

      14. Appeal and Error — Witnesses—Criminal Law — Res Gestae
    Witnesses — Production of Witnesses — Manifest Injustice. Appellate review is proper, notwithstanding the absence of a motion for a new trial, if the failure to produce a res gestae witness makes a determination of guilt result in a miscarriage of justice.
    15. Evidence — Expert Testimony — Judge’s Discretion — Abuse of Discretion — Appeal and Error.
    Admission or exclusion of expert testimony is within a trial court’s discretion and an exercise of that discretion will not be reversed except where it is clearly abused.
    16. Appeal and Error — Criminal Law — Argument of Counsel— Improper Argument — Cautionary Instruction.
    Failure to object to a prosecutor’s trial comments will bar appellate review where a cautionary instruction, in all likelihood, would have eliminated the prejudice caused by the remark.
    17. Appeal and Error — Criminal Law — Due Process — Delay in Arrest.
    Appellate review cannot be held where a defendant contends that a three-month delay in his arrest denied him due process and where such claim was not presented to the trial court and, therefore, the trial court was unable to make the required findings of fact and conclusions that are necessary to determine if the delay was explainable, not deliberate, and whether defendant was prejudiced in preparing his defense.
    Concurrence by Bronson, J.
    18. Drugs and Narcotics — Delivery of Heroin — Knowledge of Substance — Instructions to Jury — Manifest Injustice— Failure to Object — Statutes.

      Knowledge of the character of a controlled substance is an essential element of the offense of delivery of heroin and it is error to omit from jury instructions the requirement that defendant knows that the substance he is delivering is heroin; however, failure to give the instruction does not require reversal in the absence of manifest injustice, where defendant did not object to the instruction given nor raise any issue concerning his knowledge of the nature of the substance allegedly delivered (MCL 335.341[1][2]; MSA 18.1070[41][1][a]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczma

      rek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

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

   N. J. Lambros, J.

After a jury trial, defendant was found guilty of delivery of heroin in contravention of MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). The alleged delivery took place on October 29, 1974, between defendant and an undercover agent while two other people were present. Defendant was arrested on January 27, 1975. On May 3, 1975, after his preliminary examination and arraignment, defendant made a motion for substitution of counsel but this was denied. He then moved for permission to proceed in propria persona and requested a continuance to prepare for trial. This motion for a continuance was denied. The trial took place as scheduled and the jury found the defendant guilty. He appeals as of right raising numerous issues.

Defendant’s first assignment of error concerns the trial court’s denial of his motion for substitution of counsel. While an indigent defendant is not entitled to have the attorney of his own choice appointed, he may become entitled to have his assigned attorney replaced on a showing of good cause if it would not unreasonably disrupt the judicial process, People v Wilson, 43 Mich App 459, 462; 204 NW2d 269 (1972), People v Eddington, 77 Mich App 177; 258 NW2d 183 (1977). The court’s decision on this matter is reviewed on an abuse of discretion standard, People v Eddington, supra. Eight days before trial, defendant made his motion for substitution claiming that (1) he did not see his attorney before the preliminary examination, (2) he did not know his attorney’s name or phone number and consequently he could not reach his attorney, (3) his attorney made no effort to get his bond reduced, (4) his attorney failed to give defendant access to part of the preliminary examination transcript and (5) the attorney had failed to interview and secure the presence of some witnesses for trial. In summary, defendant alleges that his counsel failed to adequately prepare for trial.

There is no precise definition of "good cause” in the context of substitution of counsel, and the resolution of this issue must be found in the circumstances surrounding each case, particularly in the reasons presented to the trial judge at the time the request is made. Defendant’s first two reasons for substitution concern whether counsel was inadequately prepared due to the limited contacts he had with his client. The amount of time an attorney spends with his client is a factor used in determining whether he is adequately prepared to defend his client, but it is not the determinative factor, People v Bradley, 54 Mich App 89; 220 NW2d 305 (1974), People v Russell, 47 Mich App 320; 209 NW2d 476 (1973). The defendant and his attorney had at least as much contact as was present in Bradley, supra; and Russell, supra. For the purposes of appellate review, the more important issue is whether the defendant can show or allege that prejudice resulted from the inadequate preparation, Bradley, supra; Russell, supra. Defendant has not shown any prejudice resulting from unpreparedness.

Defendant’s claim that his counsel made no effort to seek a bond reduction is not supported by the record. Counsel made this motion and the bond was reduced by 50%. Also defendant claims that with only eight days left before trial, his attorney failed to contact a large number of essential witnesses. However, he does not allege that any were unavailable for trial because of his counsel’s delay. Reversal is not warranted unless prejudice resulted, Bradley, supra; Russell, supra. In a closely related issue, defendant claims that the trial judge abused his discretion in denying defendant’s motion for a continuance. After defendant elected to dismiss his appointed counsel and proceed in propria persona, he moved for a continuance to allow himself time to adequately prepare. The standard governing the trial judge’s decision on a motion for a continuance is set out in People v Charles O Williams, 386 Mich 565, 578; 194 NW2d 337 (1972). In that case, the Court held that:

"In view of the facts that: 1) defendant was asserting a constitutional right — the right to counsel; 2) he had a legitimate reason for asserting this right — an irreconcilable bona ñde dispute with his attorney over whether to call his alibi witnesses; 3) he was not guilty of negligence; and 4) the trial court was incorrect in stating that defendant had caused the trial to be adjourned several times — we hold that the trial court abused its discretion in denying defendant’s counsel’s motion to withdraw and in preventing defendant from changing attorneys and granting a continuance in this case.”

A fifth factor was added by People v Wilson, 397 Mich 76; 243 NW2d 257 (1976), that defendant on appeal must show that prejudice resulted. Under this standard, we hold that the trial judge did not err reversibly in denying defendant’s motion for a continuance.

Although the facts in this case meet the first and fourth requirement of Charles O Williams, supra, there is an absence of a bona fide irreconcilable dispute. In fact, no dispute as to trial tactics appears in the record. Rather it appears that defendant is simply unsatisfied with his attorney’s efforts. Not every matter of conflict between an attorney and his client requires substitution. The "irreconcilable dispute” requirement recognizes that there are some circumstances in which it would be an inefficient use of resources to require two people to work together towards a common goal when they have irreconcilable strategies. However, where the dispute is not irreconcilable, public policy favors an attempt to work these problems out rather than always switching attorneys at the first sign of trouble. Many times, it is only through resolving these problems that an attorney and his client can clear up misperceptions and expectations so that the client becomes fully aware of the implications of a situation confronting him and the options open to him.

Defendant does not allege any "irreconcilable dispute” with his attorney over strategy. Also since defendant was discharging his attorney without sufficient cause to warrant substitution, the need for a continuance could be attributed partly to defendant’s own negligence under the third prong of the Charles O Williams test. More importantly, defendant has not shown any examples of prejudice resulting from the denial of his motion for a continuance. Nor do we accept defendant’s contention that prejudice resulted from the inability of some witnesses to recall the events. If this fading of memories of the night in question was due to the time span between the date of the offense and trial, as defendant contends, then certainly the granting of a longer delay would not help restore the ability to recall.

Another issue raised by defendant concerns the judge’s instructions to the jury. Defendant contends that the trial judge erred by omitting from the instructions the requirement that the defendant know the substance he is delivering is heroin, which defendant claims is an essential element of the offense. Even though there was no request for this instruction or any objections to the ones given, reversible error is committed if the judge fails to instruct the jury on an essential element of the offense, People v Hearn, 354 Mich 468; 93 NW2d 302 (1958).

The analysis of this question of whether knowledge that one is delivering heroin is an essential element of the offense of delivery starts with the statute itself. Neither the definition of delivery, MCL 335.304(1); MSA 18.1070(4)(1), nor the provision proscribing it explicitly require knowledge that heroin is being delivered. In contrast, the provision proscribing possession, MCL 335.341(4); MSA 18.1070(41)(4), was amended in 1972 to require knowledge of the substance’s character. The courts, in dicta, have made references to this general issue when dealing with another issue; namely, the usable remnant test enunciated in People v Harrington, 33 Mich App 548; 190 NW2d 343 (1971), rev’d 396 Mich 33; 238 NW2d 20 (1976), see also People v Jones, 38 Mich App 512, at 517; 196 NW2d 817 (1972). Also, the Court in People v Gaffney, 51 Mich App 526; 215 NW2d 587 (1974), and People v Dyson, 56 Mich App 59; 223 NW2d 364 (1974), approved instructions requiring that the defendant know the character of the substance delivered.

The new Standard Criminal Jury Instructions, proposed CJI 12:2:03, mandates the giving of this instruction. However, these standard instructions were not available when the trial took place in 1975 so that they might have given some guidance to the trial judge. In light of this fact and the Legislature’s decision not to amend the delivery statute while amending the possession statute to include this element, we hold that the trial court did not err by failing to give this instruction, sua sponte. Since this is not an essential element of the offense, allegations of error in the instructions, in the absence of any objection, will only warrant reversal if a miscarriage of justice resulted, People v Frederick Lester, 78 Mich App 21; 259 NW2d 370 (1977), People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977), see also GCR 1963, 516.2. No miscarriage of justice resulted from the instruction given.

Another instructional error urged by defendant is that the trial court, in its instruction on an alibi defense, placed the burden of proof on defendant to prove his alibi. The trial judge instructed the jury as follows:

"I instruct you that such a defense is as proper and as legal, if proven, as any other and all the evidence bearing upon that point should be carefully considered by the jury, and if in view of the evidence the jury has a reasonable doubt as to whether the defendant was at some other place at the time the crime was committed, you should give the defendant the benefit of any doubt and find him not guilty. The defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is sufficient if this evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged.”

Defendant did not object at trial, but this does not necessarily preclude review, People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). Although the "if proven” seems to shift the burden of proof, the issue on appeal is whether the instruction as a whole shifted the burden of proof. In People v McCoy, supra, a similar instruction was viewed as one of the grounds for reversal, even though the defendant did not object to it and an instruction on the presumption of innocence was given before it. The Court said that such an instruction would be reversible error in the future. However, a very similar instruction ("if established”) was held not to be reversible error in People v Cain, 67 Mich App 433; 241 NW2d 233 (1976), because it indicated that if the alibi defense raised a reasonable doubt, the defendant must be acquitted. The same cautionary instruction was given in this case. Consequently, reversal is not required.

Defendant also alleges the nonindorsement and nonproduction of two res gestae witnesses as grounds for reversal. There were two other men present at the alleged delivery of heroin. Although it appears that defendant knew both of these men, he only identified one to the police, namely, Domingo Cirillo. Even though the police asked defendant about the other man, he was never identified by defendant nor did the police ever find out his identity. When they asked for Cirillo’s address, defendant could only give the police the name of the high school that Cirillo attended. The police officer contacted the prosecutor and the probate court in an effort to have them contact the high school, but Cirillo was not listed on any high school records. The officer testified that he had seen Cirillo after the arrest but did not indicate what, if any, action he took to secure his presence at trial. He also testified that his only efforts to locate the other man consisted of asking defendant his name. The officer in charge of the investigation testified that no effort was made to identify or locate these witnesses because it was not pertinent to their ongoing investigation.

Since both these persons were present when the alleged crime was committed, they are presumed to be res gestae witnesses, People v Frank Johnson, 58 Mich App 1, 7; 226 NW2d 730 (1975), People v Hicks, 63 Mich App 595, 597; 234 NW2d 720 (1975). Since these people were in a position to observe the transaction, their testimony serves the purposes of presenting the entire transaction and protecting the accused from false accusations, Peo ple v Harrison, 44 Mich App 578; 205 NW2d 900 (1973), People v Hicks, supra. The only possible issues in this case are: 1) did the prosecutor show an excuse for nonproduction, and 2) did defendant properly preserve this issue for appeal?

In People v Buero, 59 Mich App 670, 674-675; 229 NW2d 880 (1975), the exception to the general rule requiring indorsement and production were enumerated as:

"(1) When the prosecution makes a showing of due diligence in attempting to produce the witness.
"(2) Where the testimony of the missing witness would be merely cumulative.
"(3) Where the missing res gestae witness was a participant in the crime.
"(4) Where the identity of the res gestae witness is made known to the defendant during or before trial and defendant does not move for endorsement or production of the witness.”

The failure to produce the unidentified witness can be justified under the fourth exception. Presumably, defendant knew the identity of this person but failed to disclose this to the police. Also, the inability of the police to ascertain this witness’s identity is a factor to be considered in deciding whether nonproduction is excused under the first exception.

The failure to produce Cirillo cannot be excused under the fourth exception. • That exception has been modified by People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975), People v Koehler, 54 Mich App 624; 221 NW2d 398 (1974); see also, People v Kimble, 60 Mich App 690; 233 NW2d 26 (1975), so that it will no longer excuse production if nonproduction would result in a miscarriage of justice. The validity of the modification of this standard is questioned in People v Bennett, 68 Mich App 446; 243 NW2d 15 (1976), and the Court in that case stated that the reasons behind the exception are still valid considerations. However, the reasons for the exception are met in this case because the prosecutor already knew the name of the witness and had taken some steps to secure his production. To excuse the production of this witness would result in a miscarriage of justice unless one presumes that his testimony would be cumulative. Since the production of the unidentified witness is excused, Cirillo is the only available witness present at the time the alleged crime was committed. The jury might consider his testimony as the best evidence of what actually took place.

It is not alleged that the witness was an accomplice to the crime and his testimony will not be presumed to be cumulative. The only remaining exception is for the people to show that they exercised due diligence in attempting to produce the witness for trial but were unable to produce him. A review of the case law interpreting the requirement of due diligence, reveals that the efforts made in this case do not fulfill that requirement. Almost all the cases justifying nonproduction on the grounds of due diligence either involve a witness who has left the state, People v Vick, 235 Mich 475; 209 NW 584 (1926), People v McNary, 43 Mich App 134; 203 NW2d 919 (1972), People v Phillips, 37 Mich App 242; 194 NW2d 501 (1971), People v Lewis, 25 Mich App 132; 181 NW2d 79 (1970), or whose identity was unknown, People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975), People v Mack, 64 Mich App 587; 236 NW2d 523 (1975), or a witness who was only recognized as a res gestae witness during trial and a duly diligent effort failed to produce him, People v Bersine, 48 Mich App 295; 210 NW2d 501 (1973).

None of these factors is present in this case. The identity of the witness was known and there is no allegation that he left the state. The police had contacted the witness after the arrest but did not indicate what, if any, action they took to secure his presence at trial. Also, due diligence requires more than only checking out the information concerning the witness’s school. Based on the facts in the record, we cannot say that the people exercised due diligence in attempting to locate and produce this res gestae witness.

Although defendant has not made a motion for a new trial as required by People v Robinson, supra, appellate review is possible under People v Phillips, 75 Mich App 690; 255 NW2d 733 (1977). The holding in Phillips permits review, notwithstanding the absence of a motion for a new trial, if the failure to produce the witness makes a determination of guilt result in a miscarriage of justice. In Phillips, two apparently unbiased witnesses helped the police arrest defendant shortly after the crime was committed. The defense of intoxication was raised and each witness had the opportunity to view defendant’s state at the time of his arrest. They did not witness the commission of the crime. That case was remanded for a Robinson hearing because otherwise a miscarriage of justice might result. The testimony of the only eyewitness to the corpus delicti is just as, if not more, important than the testimony of the witnesses in Phillips. Although Cirillo is defendant’s cousin and he may not be unbiased, there is nothing in the record to indicate that he is biased.

The witness in this case was a res gestae witness and defendant has not waived his production. Therefore, remand is required in the instant case in order to make a sufficient record and to allow the trial court to pass upon these important issues. If the trial court determines that the people exercised due diligence in attempting to produce this witness, the conviction is affirmed. If the trial court determines that the people did not use due diligence, and that the testimony of the witness was not merely cumulative, the trial court shall reverse the conviction and order a new trial. People v Phillips, supra.

The next issue raised by defendant concerns the admission into evidence of testimony by a police officer concerning the results of field tests he conducted on the heroin. Defendant claims that the admission of this evidence was reversible error since there was not an adequate foundation for the officer to testify as an expert. The field test is not a complex matter to conduct and its results are not difficult to observe or interpret. The unknown substance is placed in a reagent and if the mixture turns purple, the substance is heroin. Defendant did not contest the scientific validity of this experiment or allege that the substance delivered was not heroin. Furthermore, he did not object to the introduction of this testimony. Under GCR 1963, 529.1, reversal or a new trial cannot be premised on the admission of this evidence unless a refusal to take such action is inconsistent with substantial justice. The result in this case is not inconsistent with substantial justice due to the introduction of this evidence.

Defendant also assigns as error the court’s ruling that a lay witness was not qualified as a handwriting expert. Defendant attempted to introduce an exculpatory letter but it was not admitted because the authenticity of the writing had not been established. Defendant called a lay witness to establish that the handwriting belonged to the person who it was claimed wrote the letter. The lay witness had only seen the writer’s signature on two Christmas cards and a birthday card. She was not even sure if the cards were signed by the alleged writer or his wife. The court offered defendant an extension of time to secure an expert witness but defendant did not use this opportunity.

It is within the trial court’s discretion to admit or exclude expert testimony and an exercise of that discretion will not be reversed except where it is clearly abused, Johnson v Detroit, 79 Mich App 295; 261 NW2d 295 (1977). A new trial will not be ordered unless a refusal to do so would be inconsistent with substantial justice, GCR 1963, 529.1. The court did not abuse its discretion in this case. Not only were the witness’s qualifications questionable, but moreover, the court was willing to allow the defendant time to get an expert witness.

Another issue raised by defendant concerns prosecutorial misconduct which he claims denied him a fair trial. The prosecutor did not misstate the applicable law and any misstatement on the burden of proof was cleared up by the judge’s instructions. It is also claimed that the prosecutor made reference to matters not in evidence. No objection was made to any of these comments. The absence of an objection will bar review, where a cautionary instruction, in all likelihood, would have eliminated the prejudice caused by the remark, People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970). Although, in making his remarks, the prosecutor might have overstepped the bounds of permissible argument, any prejudice from these remarks was minimal and could have been eliminated by a curative instruction.

Defendant’s contention that a three-month delay in his arrest denied him due process was not presented to the trial court. Thus, the trial court did not make the required findings of facts and conclusions that are necessary to determine if the standard of People v Hernandez, 15 Mich App 141; 166 NW2d 281 (1968), was violated. Since this issue was not presented to the trial court, appellate review is precluded. Defendant’s claim of excessive bail and improper sentencing do not warrant extended discussion, reversal, or resentencing.

Remanded for further proceedings consistent with this opinion.

Danhof, C. J., concurred.

Bronson, J.

(concurring). I concur in my colleagues’ disposition of this case. However, I would hold that knowledge is an essential element of delivery, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a).

I find several reasons for holding that knowledge is an element of delivery.

First, this Court has, in the context of addressing a different issue, approved instructions requiring that the defendant know the character of the substance delivered. The clearest expression of this is found in People v Dyson, 56 Mich App 59, 63-64; 223 NW2d 364 (1974):

"In Jones, supra, the approved instruction stated that in order to be guilty the defendant had to have knowledge that he was dealing with heroin and the intent to deal therewith. In the present case the trial court instructed the jury that the defendant had been charged with knowingly delivering a controlled substance. It said:
" '[I]n order to convict the defendant of this crime, the prosecutor must have proven beyond a reasonable doubt each and all of the following elements:
" T. That the crime occurred on or about the 12th day of December, 1972, in Benton Township, Berrien County, Michigan.
" '2. That this defendant intended to and did deliver a substance which, in fact, was heroin.
" '3. That at the time and place the defendant knew the substance was, in fact, heroin. ’
"Thus, it is readily apparent that the proper instructions were given.” (Emphasis added.)

Accord, People v Gaffney, 51 Mich App 526; 215 NW2d 587 (1974), People v Jones, 38 Mich App 512; 196 NW2d 817 (1972).

Second, CJI 12:2:03 includes an instruction that knowledge of the substance delivered is essential for conviction. The commentary indicates that this requirement was included "after much debate”. While the committee’s standard instructions do not establish precedent, we give some weight to their interpretation of the elements of criminal offenses. See, generally, People v Till, 80 Mich App 16; 263 NW2d 586 (1977).

Third, delivery of heroin is a most serious crime carrying a correspondingly significant maximum penalty, 20 years’ imprisonment and a $25,000 fine. It is true, as noted by the majority, that the statutory definition of "delivery” contains no knowledge requirement. See MCL 335.304(1); MSA 18.1070(4)(1). However, to interpret the crime of delivery as one of, strict liability would be contrary to the accepted view that strict liability should not apply to serious crimes. See LaFave & Scott, Criminal Law (1972), at 218-223.

Finally, I believe that People v Martin, 398 Mich 303; 247 NW2d 303 (1976), mandates the result I would reach on this issue. In Martin, the defendant was convicted of delivery and possession of heroin. The Court reversed the delivery conviction on the basis of double jeopardy. In doing so, the Court found that, in convicting defendant of delivery of heroin, "they necessarily found him in possession of it”. People v Martin, supra, at 307. To convict the defendant of possession, the jury would had to have found that the defendant knew the substance he possessed was heroin. MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). Implying such a finding from a delivery conviction means that to convict of delivery, a jury has to find that the defendant knew that the delivered substance was heroin. Otherwise, the jury would not necessarily find possession in convicting for delivery. Therefore, Martin holds that knowledge is an essential element of delivery.

For these reasons, I believe the instruction given in the case at bar was erroneous, but concur in the majority’s disposition. I find no manifest injustice requiring reversal; defendant did not object to the instruction given and did not raise any issue concerning his knowledge of the nature of the substance allegedly delivered.

       Defendant also contends that the trial judge failed to adequately investigate his reasons in support of his motion. The judge asked the attorney on the record how many times he had met with his client. Apparently, the judge accepted the attorney’s version of the number of contacts he had with his client. While it is always possible to conduct further investigation and secure more conclusive proof, see People v Bradley, 54 Mich App 89, 95; 220 NW2d 305 (1974) (where the attorney offered to submit records of his visits to the defendant in jail), we hold that the judge did not abuse his discretion by accepting the attorney’s answer.

       Ever since Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), the courts have often discussed the issues concerning substitution of counsel and the granting of a continuance as if they were one issue. This is not unreasonable since both motions are often raised and decided at the same time, and because in many cases the reasons supporting one motion are also used to support the other. However, the analysis of these problems might be better if the two issues were treated separately. The policy considerations involved in each motion are not the same. There are cases in which the substitution of counsel could take place without the need for a continuance (i.e. substitution takes place well before trial or the case is not complex and the new counsel is already familiar with it). Similarly, there are cases which a motion for substitution is properly denied but a continuance should be granted (i.e. there is no "irreconcilable dispute” but the dissatisfaction is over counsel’s inadequate preparation, which he could cure with more time to prepare).

       Although defendant does allege inability to secure Mr. Cirillo for trial, it is doubtful that a continuance would have produced him since he did not respond to a subpoena. Also the trial judge thought that some of the delays in securing defense witnesses were due to defendant’s own negligence.

         But see People v Baldwin, 74 Mich App 700; 254 NW2d 619 (1977), People v Bell, 74 Mich App 270; 253 NW2d 726 (1977), People v Haywood, 28 Mich App 459; 184 NW2d 537 (1970).

       Although defendant, proceeding in propria persona, did not make the necessary motions for production, he did ask the prosecutor to subpoena this witness, made a motion to dismiss on the grounds of nonproduction, and requested an instruction on nonproduction of the res gestae witness. While these motions are not the proper procedure for presenting this issue, they should have put the trial court on notice that the defendant thought something was wrong which may make the determination of guilt result in a miscarriage of justice.

         I.e., the "usable remnant” issue. See People v Harrington, 396 Mich 33; 238 NW2d 20 (1976).

       These instructions were not available at the time the instant case was tried.

       There is some debate as to the effect of reading a knowledge requirement into a statutory crime. It is unclear whether knowledge becomes an element of the offense or whether it is a defense. The burden of proof in either case is likewise uncertain. As CJI 12:2:03 and People v Martin, 398 Mich 303; 247 NW2d 303 (1976), indicate that knowledge is an essential element of the offense of delivery of a controlled substance, I would so hold. See the discussion of Martin, infra.

       It is true that a trial court is obligated to instruct on all essential elements of a crime, even absent a request or objection. People v Townes, 391 Mich 578; 218 NW2d 136 (1974). However, in the absence of any issue at all concerning defendant’s knowledge of the substance allegedly delivered, I would not require reversal.


source: Caselaw Access Project

author: Bronson, J.

license: Public Domain

text:
    ABBOTT v SECRETARY OF STATE
    Docket No. 77-1914.
    Submitted February 14, 1978, at Lansing.
    Decided June 6, 1978.
    Leave to appeal applied for.
    Plaintiff Jimmy D. Abbott was an uninsured motorist who was sued for damages but failed to appear and defend. The Secretary of State, after notification, appeared on behalf of plaintiff but failed to appear at a pretrial conference, whereupon a default judgment was entered against plaintiff. Plaintiff filed an action against the Secretary of State, the Attorney General and one of his assistants for damages for negligence in handling the automobile accident case. The Court of Claims, Charles A. Wickens, J., granted defendants’ motions for summary and accelerated judgment on the grounds that defendants owed no duty to plaintiff and that defendants were protected by governmental immunity. Plaintiff appeals. Held:

    The statute which authorized the Secretary of State to appear, in a lawsuit against an uninsured motorist who fails to appear, and "on behalf and in the name of the defendant” take any action deemed appropriate, created no duty on behalf of the Secretary to the uninsured motorist, and the Secretary is not liable to the uninsured motorist for negligence in making such an appearance.
    Affirmed.
    1. Automobiles — Statutes—Uninsured Motorists — Motor Vehicle Accident Claims Act — Legislative Purpose.
    The purpose of the Motor Vehicle Accident Claims Act was compensation of the victim of an uninsured motorist’s negligent driving (MCL 257.1101 et seq.; MSA 9.2801 et seq.).

    2. Automobiles — Statutes—Uninsured Motorists — Motor Vehicle Accident Claims Act — Legislative Purpose.
    The statute which allowed the Secretary of State to appear, after notice of the nonappearance of the defendant, in a lawsuit against an uninsured motorist and to take action on behalf and in the name of the uninsured defendant did not create any legal duty on the part of the Secretary of State to do so; the statute was designed solely to allow the Secretary of State to protect the interests of the Motor Vehicle Accident Claims Fund (MCL 257.1108; MSA 9.2808).

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d, Automobile Insurance § 135.
    Rights and liabilities under "uninsured motorists” coverage. 79 ALR2d 1252.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Paul J. Zimmer, Assistants Attorney General, for defendants.

      Jerry L. Sumpter, J. D., P. C., for plaintiff.
    Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

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

   Bronson, J.

This appeal arises out of an automobile accident involving plaintiff-appellant Abbott, an uninsured motorist. Abbott was sued for damages but failed to appear or defend that action. The Secretary of State was notified of Abbott’s failure to appear and entered an appearance "on behalf of * * * Jimmy Dean Abbott * * * and as intervening defendant pursuant to [MCL 257.1108(2); MSA 9.2808(2)]”. After the Secretary’s representative failed to appear at a pretrial conference, a default judgment was entered against Abbott.

Abbott filed the instant action in the Court of Claims, seeking damages for the alleged negligence of defendants in handling the automobile accident case. The Court of Claims granted defendants’ motions for summary and accelerated judgment on the bases, respectively, that defendants owed no duty to plaintiff and therefore could not be liable to him for negligence, and that defendants were protected from liability by governmental immunity. Plaintiff appeals of right.

An essential element of any negligence action is the existence of a legal duty of the defendant toward the plaintiff. See Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). Plaintiff alleges that such a duty arose in the original case by virtue of the Secretary’s appearance in that action pursuant to the Motor Vehicle Accident Claims Act. We disagree.

The purpose of the Motor Vehicle Accident Claims Act was compensation of the victims of an uninsured motorist’s negligent driving. Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972).

The statutory scheme required each uninsured motorist to pay $45 before he could register his car. The fees collected from uninsured motorists were deposited into the Motor Vehicle Accident Claims Fund, which was used to compensate the innocent injured victims of negligent uninsured drivers. When a person desired to recover from the fund, he could make application for payment from the fund under MCL 257.1106; MSA 9.2806. A notice of this application would then be sent to the owner and driver of the uninsured motor vehicle, and that person would have a chance to reply and dispute his liability. If, however, the uninsured did not dispute his liability, the Secretary could make an administrative determination of negligence, suspend the driver’s license of the uninsured, and pay out monies from the fund at his discretion.

The injured party could also proceed directly against the uninsured motorist and, after obtaining judgment, seek recovery from the fund. MCL 28.1107; MSA 9.2807.

At issue in the case at bar is § 8 of the act. That section provides that § 7 does not apply where the uninsured motorist fails to file an appearance or answer, appear at trial or enter into a consent judgment, unless the Secretary is given written notice. If notice is given, the Secretary is authorized to appear, file an answer, consent to judgment and take any other action "on behalf and in the name of the defendant” as the Secretary deems appropriate.

We hold that no legal duty by the Secretary to a defendant arises when the Secretary appears pursuant to § 8. Section 8 is designed solely to allow the Secretary to protect the interests of the fund when a defendant fails to appear or answer. As stated in Forsee v Kohari, 16 Mich App 505, 510; 168 NW2d 455 (1969):

"The statute [§ 8(2)] is intended to protect the rights of the Secretary to defend the interests of the fund when an uninsured defendant has chosen to take the path of least resistance, erroneously believing that he will avoid the inconveniences of trial and liability.”

The statutory scheme is inconsistent with an attorney-client relationship. For example, under § 8, the Secretary can set aside a default judgment as to the fund only without affecting the validity of the judgment against the defendant. See Frey v Islas, 64 Mich App 278; 235 NW2d 758 (1975); Thyne v Beggs, 62 Mich App 353; 233 NW2d 278 (1975) . The authority of the Secretary to set aside a consent judgment entered into by the defendant is also inconsistent with any alleged representation of a defendant by the Secretary. See, generally, Seffens v Muradian, 17 Mich App 455; 169 NW2d 657 (1969). Finally, § 26 of the act requires the Attorney General to assist the Secretary to. "defend actions against the fund”. Nothing in this section suggests that the Attorney General also represents the defendant. Cf. Rogers v Horvath, 65 Mich App 644; 237 NW2d 595 (1975).

Plaintiff-appellant, relying on Bray v Department of State, 69 Mich App 172; 244 NW2d 619 (1976) , likens the uninsured motorist fund to a private insurance scheme. While the Court in Bray did make such an analogy in a different context, it did not hold that the $45 uninsured motorist fee was in fact an insurance premium. As discussed above, the Legislature intended the fee to be used as a source of compensation for the victims of an uninsured motorist’s negligence. It was not intended to protect the uninsured motorist against loss or provide legal representation for him. That the act is not an insurance plan is evident from its title:

"AN ACT providing for the establishment, maintenance and administration of a motor vehicle accident claims fund for the payment of damages for injury to or death of certain persons or property damage arising out of the ownership, maintenance or use of motor vehicles in the state in certain cases; and to provide penalties for violation of this act.” 1965 PA 198.

As there existed no legal duty of defendants to represent Abbott, summary judgment for defendants in this negligence action was proper.

Affirmed. Costs to appellees.

       Judgment against Abbott of $32,100 resulted. Upon payment by the state of $20,000 of the judgment, the maximum statutory liability under the Motor Vehicle Accident Claims Act, Abbott’s driver’s license was suspended pending institution of a repayment plan. See MCL 257.1110; MSA 9.2810.

       The action was filed in the Court of Claims after this Court had held that the Court of Claims had exclusive jurisdiction over plaintiffs claim. See Abbott v Secretary of State, 67 Mich App 344; 240 NW2d 800 (1976).

       GCR 1963, 117.2(1).

       GCR 1963, 116.1(5). The proper motion to raise governmental immunity appears to be one for summary judgment under GCR 1963, 117.2(1). See, e.g., White v Detroit, 74 Mich App 545; 254 NW2d 572 (1977). As the parties claim no prejudice from the mislabeling of the motion, reversal is not required. See Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1975).

       MCL 691.1407; MSA 3.996(107).

       MCL 257.1101 et seq.; MSA 9.2801 et seq.

       MCL 257.1103(3); MSA 9.2803(3). That section has since been amended by 1974 PA 223, which now requires that all drivers be insured.

       MCL 257.1108; MSA 9.2808.

        Bray was a class action by motorists seeking a refund of one-half of the $45 fee after the act was amended. The Court stated:
      "[T]he MV ACA provisions do not fit under either of the traditionally invoked labels. Instead, they are unique. They seem to be designed to establish a state administered insurance program similar in some respects to a private insurance program. The $45 fee thus could be said to represent an annual insurance premium paid by those who have not acquired private insurance policies. If a private insurance policy is cancelled, MCLA 500.3020; MSA 24.13020, requires the insurer to refund the excess portion of the premium paid by the insured. Because the MV ACA fee is similar to an insurance premium, we believe the policy of MCLA 500.3020; MSA 24.13020 applies, and that portion of the $45 fee covering the time between October 1, 1973, the date the no-fault act became operative, and March 31, 1974, the end of the fee year, should be refunded.” 69 Mich App at 178-179.
      However, the Court also stated:

        "By imposing a reimbursement requirement, those provisions indicate that uninsured motorists, in actuality, gained no protection from the Fund and, thus, were not intended as the primary beneficiaries of MVACA. They thereby suggest, instead, that those individuals damaged by uninsured vehicles were intended as the major beneficiaries of MVACA.” Id. at 180.

       As we hold that defendants owed no legal duty to plaintiff, we need not reach the governmental immunity issue.


author: V. J. Brennan, J.

text:
    CHRIS NELSON AND SON, INC. v ATLAS CONCRETE PIPE, INC.
    Docket No. 77-2427.
    Submitted April 5, 1978, at Lansing.
    Decided June 6, 1978.
    Leave to appeal applied for.
    The Genesee County Drain Commissioner entered into a contract with defendant Atlas Concrete Pipe, Inc., wherein Atlas agreed to furnish concrete pipe to the drain commission for construction of a sewer. As required by statute, Atlas furnished a performance bond signed by defendant Reliance Insurance Company, as surety, naming the drain commission as obligee. Plaintiff Chris Nelson and Son, Inc., made a contract with the drain commission to install the pipe. Atlas delayed in the delivery of the pipe, therefore Nelson was delayed in the installation. A settlement agreement was later reached between Nelson and the drain. commission providing for the' assignment of the commission’s claims for delays in delivery against Atlas to Nelson, and Nelson, in return, agreed not to pursue its claims for delays against the commission. The agreement also assigned to Nelson the commission’s rights against Atlas, as principal, and Reliance, as surety, under the bond. Nelson then commenced suit on its claim under the bond against Atlas and Reliance. Reliance brought a crossclaim against Atlas. Atlas was declared bankrupt during the pendency of the action and Nelson obtained a default judginent against Atlas. Reliance then brought a third-party complaint against Construction Services, Inc., and others, for indeninity on the performance bond. The Genesee Circuit Court, Ollie B. Bivins, Jr., J., awarded damages to Nelson against Reliance and continued the third-party claims and crossclaim of Reliance for trial separately. Reliance appeals. Held:

    The plaintiff, a third-party beneficiary of the performance bond, may recover from the promisor and the promisor’s surety where there has been a breach of the contract to which the performance bond applies. A bond which guarantees the performance of a construction contract is assignable where there is no evidence that the parties intended to restrict such assignment. Neither the assignment nor the payment of retainage to defendant Atlas discharged defendant Reliance as surety, since the contract did not require the commission to retain funds for the surety’s benefit and a prejudicial change in obligations or duties is necessary to discharge a surety from liability. No such prejudice is shown here.

      References for Points in Headnotes
    [1] 17 Am Jur 2d, Contractors’ Bonds § 125.
    [2] 17 Am Jur 2d, Contractors’ Bonds § 93.
    [3] 17 Am Jur 2d, Contractors’ Bonds § 94.

      Affirmed.
    1. Contracts — Municipal Corporations — Third-Party Beneficiaries — Performance Bonds — Public Works Contractor’s Bonds —Breach—Statutes.
    A third-party beneficiary of a performance bond required by statute of contractors for public buildings and public works of governmental units may recover from the promisor and the promisor’s surety where there has been a breach of the contract to which the bond applies (MCL 129.202; MSA 5.2321[2]).
    2. Contracts — Municipal Corporations — Public Works Contractor’s Bonds — Assignment—Statutes.
    A bond, required by statute of contractors for public buildings and public works of governmental units to guarantee the performance of a construction contract, is assignable where there is no evidence that the parties intended to restrict such assignment and where the governmental unit does not lose the protection intended by the bond as a result of the assignment (MCL 129.202; MSA 5.2321[2]).
    3. Contracts — Municipal Corporations — Suretys—Discharge of Suretys — Performance Bonds — Assignment of Rights — Payment of Retainage.
    A prejudicial change in obligations or duties is necessary to discharge a surety from liability on a performance bond; therefore, neither a promisee’s assignment of its rights under a construction performance bond nor the promisee’s payment to the promisor of retainage held under a contract to which the bond applies discharged the surety where the bond was assignable, the surety was not prejudiced by the assignment, and the contract did not require the promisee to retain funds for the surety’s benefit.

      C. Robert Beltz, for plaintiff.

      Moore, Sills, Poling, Wooster, Sinn & Taylor, P. C., for defendant.

      Before: Allen, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

Defendant Reliance Insurance Company appeals from a June 2, 1977, order of Genesee County Circuit Court Judge Ollie B. Bivins, Jr., finding defendant Reliance liable to plaintiff Chris Nelson and Son, Inc., in the amount of $403,204.35 plus interest and costs. This cause of action arises incident to contracts with the Genesee County Drain Commissioner for construction of a sewer project in Genesee County. Trial in the case was held on January 6, 1977, and Judge Bivins issued his opinion on January 28, 1977. Defendants’ appeal is taken as of right under GCR 1963, 806.1.

We affirm the trial court’s decision. Plaintiff was a third-party beneficiary of the performance bond for which defendant Reliance was surety. Hardware Dealers Mutual Ins Co v RH Hidey, Inc, 349 Mich 490; 84 NW2d 795 (1957). Clearly, defendant Atlas Concrete Pipe, Inc., as promisor, and defendant Reliance, as surety, agreed to assume the direct obligation of making timely deliveries of concrete pipe to plaintiff. The Genesee County Drain Commissioner, as promisee, by statute, only intended to protect himself. Regardless, plaintiff was a third-party beneficiary under the performance bond and could recover from defendants Atlas and Reliance. Guardian Depositors Corp v Brown, 290 Mich 433; 287 NW 798 (1939), Talucci v Archambault, 20 Mich App 153; 173 NW2d 740 (1969). Further, we find no express language in 1963 PA 213 which would cut off plaintiff’s third-party beneficiary rights. As a third-party beneficiary, plaintiff could seek recovery from defendant Reliance.

Moreover, by what we find is a valid assignment, plaintiff acquired all of the Genesee County Drain Commissioner’s rights on the bond. See 4 Corbin on Contracts, § 880, p 539, 13 Couch on Insurance 2d, § 47:97. Couch states the following:

"A bond executed by a bonding company in business for profit, which guarantees the performance of a construction company contract in existence, is assignable where it contains no evidence that the right to have it performed shall not be assignable, but on the contrary, shows that it was the intent of the parties that it could, and would in all probability, be assigned before the time for its completion should arrive; and it is assignable along with the principal contract.” (Footnote omitted.) See American Bonding & Trust Co v Baltimore & OSWR Co, 124 F 866, 878-879 (CA6, 1903).

In short, we find no evidence that the parties intended to restrict assignment of defendant Atlas’ performance bond by the Genesee County Drain Commissioner. We will infer no such intention on review. Thus, as the commissioner had the power to make assignments, there is no such limitation to his assignment of rights upon the performance bond to plaintiff. MCL 280.5; MSA 11.1005. See also 1963 PA 213 (where no restriction concerning assignment of rights arising from a performance bond is specified). Further, we find the assignment was not an improper partial assignment of a chose in action or an assignment of a nonexistent cause of action.

Moreover, neither the assignment nor the drain commissioner’s payment of retainage to defendant Atlas discharged defendant Reliance as surety; as required by MCL 129.202; MSA 5.2321(2) the governmental unit did not lose its protection because of the assignment; that is, the bond was still protecting the drain commissioner. A prejudicial change in obligations or duties is necessary to discharge a surety from liability. Miller Industries, Inc v Cadillac State Bank, 40 Mich App 52, 59; 198 NW2d 433 (1972), Bernadich v Bernadich, 287 Mich 137; 283 NW 5 (1938), In re Landwehr’s Estate, 286 Mich 698; 282 NW 873 (1938). The trial court found no prejudice to defendant Reliance from the plaintiffs assumption of the drain commissioner’s rights under the performance bond.

We affirm this finding. Nor does the drain commissioner’s payment of retainage to defendant Atlas release defendant Reliance from liability as surety. Defendant Reliance could have contracted to require retainage for its benefit. Reliance was aware that the contract language was permissive and that the drain commissioner did not have to retain funds to cover the contractor’s claims. Presumably, defendant Reliance adjusted its rates to provide for the added risk that the drain commissioner might not retain funds. In the absence of mandatory contract language requiring the commissioner to retain funds to protect defendant Reliance, the commission had to make final and complete payment within 35 days after the completion and acceptance of the project. The commissioner’s payments did not discharge Reliance’s liability on the performance bond.

Affirmed.

Costs to be paid by Reliance.


author: J. H. Gillis, P. J.

text:
    BIERBUSSE v THE FARMERS INSURANCE GROUP OF COMPANIES
    Docket No. 77-2569.
    Submitted May 2, 1978, at Lansing.
    Decided June 6, 1978.
    Patricia Bierbusse and her husband were separated pending divorce, and living in separate households. The couple’s daughter Michelle Bierbusse lived with the mother. Michelle Bierbusse was injured when a bicycle upon which she was riding collided with an automobile which was insured by a company not licensed to do business in Michigan. Mrs. Bierbusse, as the next friend for her daughter, commenced an action against The Farmers Insurance Group of Companies, with whom the father had an automobile insurance policy. Summary judgment for defendant, Lapeer Circuit Court, Martin E. Clements, J. on the basis that, although the policy was in effect, the daughter was not covered in that she was not domiciled with the named insured at the time of the accident. Plaintiff appeals. Held:

    When a couple is separated pending divorce and one spouse is the named insured on a no-fault policy the other spouse and the children of the named insured are covered by the no-fault policy, even though they are domiciled in separate households, until the divorce is finalized.
    Reversed and remanded.
    1. Automobiles — Insurance—No-Fault Insurance — Remedial Statutes — Liberal Construction.
    The no-fault automobile insurance statute is remedial in nature, attempting to correct the deficiencies found in the old tort system; remedial statutes are to be construed liberally in favor of the persons intended to be benefitted by the statute.
    2. Automobiles — Insurance—Divorce—Separate Households — No-Fault Insurance.
    An estranged spouse and the children of a named insured are covered by a no-fault policy issued to the named insured, even though they are domiciled in separate households, until divorce is finalized where a couple is separated pending divorce and one spouse is the named insured in the no-fault policy.

      References for Points in Headnotes
    [1] New Topic Service, No-Fault Insurance § 1.
    [2] New Topic Service, No-Fault Insurance § 18.

      Simen & Zimmer, P. C., for plaintiff.

      Terence J. O’Neill, for defendant.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   J. H. Gillis, P. J.

Plaintiff appeals as of right from an order entered in Lapeer County Circuit Court granting defendant’s motion for summary judgment.

The facts in this matter are not in dispute.

Plaintiff commenced this action as next friend for her daughter. The daughter was injured when a bicycle upon which she was riding collided with an automobile. It appears that the automobile was insured by a company not licensed to do business in this state. Therefore, according to the parties, the daughter was required to seek compensation from her parents’ insurer, the defendant in this case.

Defendant, while acknowledging that the policy was in effect, contends that the daughter was not covered in that she was not domiciled with the named insured at the time of the accident, and, therefore, was excluded from coverage under MCL 500.3114(1); MSA 24.13114(1).

The trial court agreed and granted defendant’s motion for summary judgment on this ground.

The sole issue raised on appeal can be set forth in one rather simple sentence. Do the personal protection benefits of a Michigan no-fault policy extend to the daughter of a named insured who is domiciled in a separate household with the estranged spouse of the named insured?

"Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.” MCL 500.3114(1); MSA 24.13114(1). (Emphasis supplied.)

Our research has produced only one case that interprets the aforementioned section of the no-fault act. In Citizens Mutual Ins Co v Community Services Ins, 65 Mich App 731; 238 NW2d 182 (1975), a panel of this Court held that an estranged spouse, not domiciled with the named insured, is still covered by the named insured’s no-fault automobile policy. However, the panel went on to conclude that any other relative of the named insured or the spouse must be domiciled with the named insured in order to be covered under the named insured’s policy.

An application of this rule to the instant case would deny plaintiff relief, and produce what we perceive to be an inequitable result which would also contradict the policy underpinning the no-fault insurance act.

As noted by the Citizens Mutual case, supra:

"What the Legislature meant by the language employed and the structure of the sentence must be determined with some degree of reason. There is reason for limiting insurance benefits to any relative of the insured or his spouse to those relatives domiciled in the insured’s household. It creates a definite limit to the exposure of the insurer, an essential factor in determining the insurance premium.” Citizens Mutual, supra, at 733.

While agreeing that the statute should be interpreted in a manner that allows an insurer to reasonably calculate the scope of risk and the premium incidental thereto, we do not believe that a per se rule excluding from coverage any relative not domiciled in the same household as the named insured is in accord with the legislative intent.

The no-fault automobile statute is remedial in nature, attempting to correct the deficiencies found in the old tort system. See, Shavers v Attorney General, 65 Mich App 355, 366; 237 NW2d 325 (1975), lv gtd, 396 Mich 869 (1976). Remedial statutes are to be construed liberally in favor of the persons intended to be benefited by the statute. Hockenhull v Cutler Hubble, Inc, 39 Mich App 163; 197 NW2d 344 (1972), Hite v Evart Products Co, 34 Mich App 247, 252; 191 NW2d 136 (1971).

It is also quite clear that when the policy was issued the defendant calculated its premium on the basis of the named insured, his wife and their children. To allow defendant to escape liability by concluding that the daughter was not within the zone of risk contemplated by the defendant is absurd and would create a windfall in favor of defendant.

Accordingly, we refuse to follow the hard and fast rule set forth in Citizens Mutual, supra, which would deny plaintiff relief in this case. Instead, we adopt the following rule that is restricted to the facts in this matter.

When a couple is separated pending divorce and one spouse is the named insured on a no-fault policy, the other spouse and the children of the named insured are covered by the no-fault policy, even though they are domiciled in separate households, until the divorce is finalized.

Reversed and remanded for proceedings consistent with this opinion. We retain no further jurisdiction. No costs, a case of first impression being involved.


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

text:
    McDERMOTT v McDERMOTT
    Docket No. 77-2874.
    Submitted February 23, 1978, at Detroit.
    Decided June 6, 1978.
    Patricia McDermott commenced a divorce action against John P. McDermott. The divorce was granted, Monroe Circuit Court, William J. Weipert, Jr., J. The property settlement in the divorce judgment awarded the marital home to the plaintiff wife and awarded $4,000 to the husband as his share of the equity in the house, payable by the plaintiff on the date that the house is sold or when the youngest of 3 minor children, in the custody of the wife, reaches the age of majority, whichever occurs first. The $4,000 figure was reached by granting the husband 1/2 of the difference between the purchase price and the outstanding amount on the mortgage. The defendant appeals contending that the trial judge abused his discretion because he did not consider the appreciation of the house and that he should have valued it at the present market value. Held:

    The award as granted is not equitable to both parties. Not only will the defendant not be able to share in the past appreciation of the house, but he is obligated to wait to receive the sum awarded with no chance of sharing in future appreciation or of getting any interest on his award.
    Remanded for further proceedings.
    Beasley, P. J., dissented. He would hold that there has been no showing of an abuse of the trial court’s discretion and would affirm.
    Opinion of the Court
    1. Divorce — Property Settlement — Discretion—Fairness.
    The division of property in a divorce case is a matter for the discretion of the trial court and there are no set mathematical rules or formulas to be applied in every case; however, while the amounts awarded need not meet any numerical standard, they must be fair in light of the overall circumstances of the parties.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation § 933.
    [2] 5 Am Jur 2d, Appeal and Error § 868.

      Dissent by Beasley, P. J.
    2. Divorce — Appeal and Error — De Novo Review — Discretion.

      The Court of Appeals reviews divorce cases de nóvo on the record; however, the court should not substitute its judgment for that of the trial court absent a showing of an abuse of discretion.

      Ready, Sullivan & Ready, for plaintiff.

      Leslie J. Nearpass, for defendant.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

The present matter involves a property division in a judgment of divorce. The defendant-husband argues that the amount awarded to him as his share of the equity in the family residence is inadequate and inequitable.

The marital home was purchased in 1971 for $31,800. At the time of the divorce (1976), there was a mortgage balance on the house of approximately $24,000. An expert witness testified that the market value of the house at the time of the divorce was approximately $52,500.

The court awarded the house to plaintiff-wife, along with the obligation to pay the mortgage, taxes, insurance, and maintenance expenses on the home. Defendant was awarded $4,000 as his share of the equity, payable by plaintiff on the date that the house is sold or when the youngest of 3 minor children reaches the age of majority, whichever occurs first.

Defendant asserts that the court reached the $4,000 amount by figuring approximately 1/2 of the difference between the purchase price and the outstanding mortgage. He contends that this calculation was an abuse of discretion because it did not take into account the appreciation of the house by way of the present market value.

We agree with Judge Beasley’s dissent that the division of property in a divorce case is a matter for the discretion of the trial court and that there are no set mathematical rules or formulas to be applied in every case. However, while the amounts awarded need not meet any numerical standard, they must be fair in light of the overall financial circumstances of the parties.

We are troubled by the court’s finding in regard to the marital residence for the reason that the defendant not only will not share in the appreciation of the house from the original purchase date to the date of the property settlement, he will also be obliged to wait for the lesser sum set by the court until the eventual date of sale. He will share neither in the appreciation that will continue nor will his award bear interest. Absent any unusual circumstances, we do not feel that the award as granted is equitable to both parties.

Accordingly, we remand the matter to the trial court to review its property division and to advise this Court as to the basis for its determination on the record. GCR 1963, 517.1. The trial court should not be foreclosed from conducting another hearing or making additional findings of fact and determinations that it may deem advisable.

Remanded for proceedings consistent with this opinion. We retain jurisdiction.

Bashara, J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

On June 18, 1975, plaintiff-wife started a divorce case against defendant-husband. On May 26, 1976, plaintiff-wife was awarded a divorce judgment which included a provision placing custody of the parties’ three minor children in her and requiring defendant-husband to pay child support. Plaintiff-wife was awarded the marital home and was required to pay defendant-husband $4,000 when the youngest child reached majority or when the premises were sold, whichever occurred first.

Defendant-husband appeals as a matter of right, claiming the property settlement was so inequitable as to constitute an abuse of discretion. He also claims that the trial court erred in calculating defendant-husband’s share by deducting the mortgage balance from the cost of the home at the time of purchase, dividing that figure in half and deferring payment until the children were grown or the premises sold. He contends that the trial court should have calculated defendant-husband’s share by deducting the mortgage balance from the market value of the home at the time of the divorce judgment and dividing that figure in half.

The issue was raised by defendant-husband in a motion before the trial court for an amendment of the judgment. The motion was denied, the trial court stating simply:

“The Court must agree with the position here of the original Plaintiff. This case was tried on April 8, 1976. It is now the 17th of June, 1977. To the extent that the Court can recollect this at all, it appears to me that the Ruling made was that intended. Motion denied.”

Although this court reviews divorce cases de novo on the record, it will not substitute its judgment for that of the trial court absent a showing of an abuse of discretion. There are no set mathematical formulas or simple rules governing the division of property in a divorce case. This Court looks to see if the property award is fair and equitable under all the circumstances involved.

The trial judge stated his reason for using the cost of purchase minus mortgage balance method of calculation in the within case as follows:

"The best interests of the children indicate that the home should be theirs to enjoy during their growing-up period; and, in fact, it is 'agreed by the parties. The home is awarded to the mother. There is presently calculated from the purchase price of thirty-one thousand eight hundred dollars and the lien remaining, mortgage lien of twenty-four thousand fifty dollars, an equity of seven thousand seven hundred fifty dollars. In view of the large amount still owing which will have to be paid by Mrs. McDermott unless the house should be sold before the time of division, it appears proper to simply award Mr. McDermott, and I will award him, the sum of four thousand dollars in equity to be paid at such time as the home is sold, if sold earlier than the children’s majority or at that time, and a lien in his favor in that amount.”

While application of this method may have re-suited in some disparity in shares of marital property when measured by present inflated valuations, this does not necessarily indicate that there was an abuse of discretion by the trial court.

I would not find that the considerations afforded weight by the trial court were clearly erroneous or constituted an abuse of discretion and, therefore, I would vote to affirm._

        Crane v Crane, 17 Mich App 588; 170 NW2d 194 (1960).

       An unequal distribution of a marital asset can clearly be supported by a finding of fault on the part of either party. In the present case, the court’s finding in regard to the division of the marital home does not expressly rely on a finding of fault. For that reason, our decision presumes that the court meant to make fair and equitable division of the asset.

       GCR 1963, 527; GCR 1963, 528.3.

        Eigner v Eigner, 79 Mich App 189, 201; 261 NW2d 254 (1977), Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975).

        Kurtz v Kurtz, 34 Mich App 34; 190 NW2d 689 (1971).

        Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956).

        Crane v Crane, 17 Mich App 588; 170 NW2d 194 (1969).

        Johnson v Johnson, supra, at 431.


author: Danhof, C. J.

text:
    INSURANCE COMPANY OF NORTH AMERICA v ISSETT
    Docket No. 77-3127.
    Submitted April 12, 1978, at Lansing,
    Decided June 6, 1978.
    Insurance Company of North America filed a writ of garnishment against Continental Underwriters, Inc., as garnishee defendant. Continental did not file a disclosure revealing its liability to the principal defendant as required by law. Consequently, plaintiff took a default judgment against Continental. A motion to set aside the default judgment was filed by Continental alleging that the court lacked jurisdiction in the original garnishment action because the required aifidavit was not filed and because of ineffective service of process. Motion denied in Grand Traverse Circuit Court, William R. Brown, J. Continental appeals. Held:

    1. Remand to the trial court is necessary where the judge fails to make findings of fact as to whether an affidavit was filed when an original writ of garnishment issued.
    2. The burden of proof to show non-service of process is upon the party attacking the jurisdiction of the court and a bare denial of service by that party is not sufficient.
    Remanded for further proceedings.
    1. Garnishment — Harsh Remedy — Statutory Requirements— Strict Construction — Affidavits—Jurisdiction—Void Judgments.
    Garnishment proceedings are governed by statute and court rules and because garnishment is often a harsh remedy, the statutory requirements are strictly construed; a properly filed affidavit for a writ of garnishment is indispensable for the exercise of these statutory powers and unless this affidavit is filed, a court proceeds without jurisdiction and the resulting judgment is void.

      References for Points in Headnotes
    [1] 6 Am Jur 2d, Attachment and Garnishment § 332.
    [2] 6 Am Jur 2d, Attachment and Garnishment § 408.
    [3] 47 Am Jur 2d, Judgments §§ 932, 933.
    [4] 61 Am Jur 2d, Pleading § 389.
    [5] 6 Am Jur 2d, Attachment and Garnishment § 280.
    [6] 62 Am Jur 2d, Process §§ 27, 28, 181.
    [7] 5 Am Jur 2d, Appeal and Error § 841.

      2. Garnishment — Judgment—Setting Aside — Court Rules.
    Judgments in garnishment proceedings can be set aside as in other civil actions (GCR 1963, 738.13[6]).
    3. Judgment — Jurisdiction—Setting Aside — Void Judgment— Court Rules.
    Judgments made without jurisdiction over the subject matter are void and can be set aside (GCR 1963, 528.3[4]).
    4. Courts — Personal Jurisdiction — Pleadings and Motions— Waiver of Defects — Statutory Requirements — Subject Matter Jurisdiction.
    The filing of pleadings and motions can operate as a waiver of defects of personal jurisdiction; they do not, however, confer subject matter jurisdiction on a court where the requirements mandated by a statute have not been fulfilled.
    5. Garnishment — Affidavits—Findings of Fact — Remand.
    A trial judge is required to make findings of fact as to whether an affidavit was filed when an original writ of garnishment issued; remand to the trial court is necessary where the judge fails to make such findings.
    6. Process — Service—Jurisdiction—Burden of Proof.
    The burden of proof to show non-service of process is upon the party attacking the jurisdiction of the court; a bare denial of service by that party, where the return of service was regular on its face, is not sufficient.
    7. Appeal and Error — Courts—Findings of Fact — Clearly Erroneous Rule — Court Rule.
    A trial court’s findings of fact will not be set aside on appeal unless they are clearly erroneous (GCR 1963, 517.1).

      Cholette, Perkins & Buchanan (by Charles H. Worsfold), for plaintiff.

      Paul R. Jackman, for defendant.
    Before: Danhof, C. J., and Bronson and Cynar, JJ.
   Danhof, C. J.

Garnishee-Defendant Continental Underwriters, Inc. (hereinafter "Continental”) appeals from the denial of its motion to set aside a default judgment and from the denial of a motion for rehearing. Plaintiff filed a writ of garnishment against Continental, pursuant to GCR 1963, 738, on October 2, 1974. A deputy sheriffs return of service attests that Continental was served with the writ and supporting affidavit on October 17, 1974. Continental did not file a disclosure as required by GCR 1963, 738.6, revealing any liability of the garnishee-defendant to the principal defendant. Consequently, plaintiff took a default judgment against Continental pursuant to GCR 1963, 738.8, on December 16, 1974. On April 17, 1975, plaintiff filed an affidavit and a writ of garnishment against a bank at which Continental maintained an account, claiming that Continental had made no effort to pay the judgment. After the bank filed a disclosure, Continental posted a bond on October 30, 1975, to terminate the garnishment.

On October 14, 1976, Continental filed a motion to set aside the default judgment, advancing various equitable grounds not pertinent to this appeal. This was denied on February 22, 1977. At this point, Continental filed a second motion to set aside the default judgment, alleging that the court lacked jurisdiction in the original garnishment action because no affidavit was filed as required by GCR 1963, 738.2, and because of ineffective service of process. The trial court denied this motion, finding that the defendant was properly served.

On appeal, Continental argues that the trial court erred in not setting aside the default judgment since the court lacked jurisdiction in conducting the garnishment proceeding. In Michigan, garnishment proceedings are governed by statute and court rules and because it is often a harsh remedy, the statutory requirements are strictly construed, People’s Wayne County Bank v Stott, 246 Mich 540; 224 NW 352 (1929). Under GCR 1963, 738.2, a properly filed affidavit for the writ of garnishment is indispensable for the exercise of these statutory powers. Unless this affidavit was filed, the court proceeded without jurisdiction and the resulting judgment was void.

In this case, there is not an affidavit on file supporting the writ of garnishment. Moreover, there is not even a calendar docket entry which shows that such an affidavit was filed, see People’s Wayne County Bank, supra, at 542. Also, there is no finding by the trial judge that this affidavit was filed. Thus, for the purposes of review, we shall proceed on the assumption that no affidavit was filed.

Since no affidavit was filed and the statutory requirements were not fulfilled, the court lacked jurisdiction to proceed in this matter. Service of process on the defendant did not cure this defect in fulfilling the statutory requirement. Judgments in garnishment proceedings can be set aside as in other civil actions, GCR 1963, 738.13(6). Judgments made without jurisdiction over the subject matter are "void” and can be set aside pursuant to GCR 1963, 528.3(4).

Also, none of the actions taken by defendant amounted to a waiver of this defect, see GCR 1963, 111.3(1). Under GCR 1963, 116.2, the filing of pleadings and motions can operate as a waiver of defects of personal jurisdiction. They do not, however, confer subject-matter jurisdiction on the court when the requirements mandated by the statute have not been fulfilled. Similarly, GCR 1963, 738.9(5), does not require a waiver in this case. The policy behind that rule is to encourage appearances by not making them act as a waiver of defects normally waived by an appearance. If an appearance, generally under GCR 1963, 116.2, does not amount to a waiver of this defect, nothing in GCR 1963, 738.9(5) indicates that it intended the same action to be a waiver in garnishment proceedings, see 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed) p 612.

In this case, the trial judge did not make any findings as to whether an affidavit was filed when the original writ of garnishment was issued. Due to the importance of this fact, a remand is required. On remand, if plaintiff can show that such an affidavit was filed, then the decision is affirmed. If it cannot be shown that such an affidavit was filed, the judgment will be set aside.

The second issue raised by defendant concerns the failure of plaintiff to serve defendant with an affidavit. The proof of service of process executed by the deputy sheriff states that the affidavit was served. The burden of proof to show non-service is upon the party attacking the court’s jurisdiction and where the return of service, regular on its face, is impeached with nothing more than a bare denial of service, there is no grounds for disturbing the trial court’s conclusion, James v James, 57 Mich App 452, 454; 225 NW2d 804 (1975). Also, the trial court found as a fact that the affidavit was served as attested to by the return of service, and this finding cannot be set aside unless it is clearly erroneous, GCR 1963, 517.1. This finding is not clearly erroneous.

This case is remanded for further proceedings consistent with this opinion. Costs to abide the final outcome.

       At the outset, it should be noted that this opinion is expressly limited to the facts involved in this case; no affidavit for the writ of garnishment was ever filed in court. This case does not involve a filed affidavit which contained minor defects. The affidavit is usually sufficient if it is in substantial compliance with the requirements of the rules, Poma v People’s Wayne County Bank, 257 Mich 696; 241 NW 888 (1932). Also, technical defects in an affidavit that was filed are occasionally subject to waiver, Fildew v Stockard, 256 Mich 494; 239 NW 868 (1932).