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

text:
    HATHCOX v LIBERTY MUTUAL INSURANCE COMPANY
    Docket No. 78-1773.
    Submitted April 3, 1979, at Lansing.
    Decided June 5, 1979.
    William E. Hathcox was loading new automobiles onto a truck-trailer. The truck-trailer was owned by his employer, C & J Commercial Driveaway, Inc., and was insured by Liberty Mutual Insurance Company. After driving one of the automobiles onto the top deck and leaving that automobile, Hathcox slipped on the snow-covered deck and fell, sliding down the ramp to the ground. As a result, he suffered neck and back injuries which prevented him from working for over six months. State Farm Mutual Automobile Insurance Company was Hathcox’s no-fault insurance carrier. Hathcox brought an action against both insurance companies seeking to recover no-fault insurance benefits for his injuries. Ingham Circuit Court, James T. Kailman, J., granted defendants’ motions for summary judgment and denied plaintiffs motion for a partial summary judgment. In denying plaintiffs motion the court held that plaintiffs attempt to recover no-fault benefits from Liberty Mutual was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act and that plaintiff was unable to recover from State Farm due to a policy provision excluding recovery for injuries sustained by its insured while occupying an employer’s vehicle. Plaintiff appeals. Held:

    1. An employee is entitled to receive personal protection insurance benefits from his employer’s insurer if he suffers accidental bodily injury while an occupant of a motor vehicle owned or registered to his employer.
    2. Occupying an automobile embraces a zone of connection with the subject vehicle which includes persons not actually inside of the vehicle at the time of an injury.
    3. Plaintiff occupied his employer’s truck at the time of his injury. He was inside of the cab at various times to operate hydraulic equipment and fell immediately after having driven an automobile onto the deck of the truck-trailer. The injury arose out of the use of the employer’s truck and its trailer. He is entitled to recover no-fault insurance benefits from Liberty Mutual, the employer’s insurance carrier.

      References for Points in Headnotes

       New Topic Service, No-Fault Insurance § 18.

       7 Am Jur 2d, Automobile Insurance § 127.

       7 Am Jur 2d, Automobile Insurance §§ 88, 90.

       New Topic Service, No-Fault Insurance §§ 1, 18.

      4. Where an employee sustains bodily injuries while occupying his employer’s motor vehicle in the course of his employment, he is not barred from recovering personal protection insurance benefits from his employer’s no-fault insurance carrier by the exclusive remedy provision of the Worker’s Disability Compensation Act.
    Reversed.
    R. M. Maher, P.J., concurs in the result reached by the majority. He would hold that a plaintiff is entitled to recover no-fault benefits where he is injured while alighting from a vehicle and the requisite causal connection between the vehicle and the injury is established.
    Opinion of the Court
    1. Insurance — Automobiles — Employees — Accidental Injury — Occupant of Vehicle — Personal Protection Benefits — Statutes.
    An employee who suffers accidental bodily injury while an occupant of a motor, vehicle owned or registered by the employer shall receive personal protection insurance benefits to which he is entitled from the insurer of the furnished vehicle (MCL 500.3114[3]; MSA 24.13114[3]).
    2. Insurance — Automobiles — “Occupying” — Construction of Policy — Statutes.
    Interpretation of the word "occupying”, in an automobile insurance contract, embraces a zone of connection with the subject vehicle which includes persons not actually inside the vehicle at the time of an injury (MCL 500.3114[3]; MSA 24.13114[3]).
    3. Insurance — Automobiles —• No-Fault Insurance — "Occupying” — Employer Liability — Statutes.
    An employer’s motor vehicle is occupied by an employee at the time of an injury and the employee is entitled to recover no-fault insurance benefits from his employer’s insurance carrier where the employee was actually inside of the cab of his employer’s truck-trailer at various times to operate hydraulic equipment while loading automobiles and fell immediately after having driven an automobile onto the deck of the trailer, because the injury arose out of the use of the employer’s truck and its trailer (MCL 500.3114[3]; MSA 24.13114[3]).
    4. Insurance — Automobiles — No-Fault Insurance — Insurance Benefits — Employer Liability — Workmen’s Compensation — Exclusive Remedy — Statutes.
    The exclusive remedy provision of the Worker’s Disability Compensation Act do not bar a plaintiff from recovering no-fault insurance benefits from his employer’s no-fault carrier where the plaintiff sustained bodily injuries while occupying his employer’s motor vehicle in the course of his employment (MCL 418.131, 500.3114[3]; MSA 17.237[131], 24.13114[3]).
    Concurrence by Maher, P.J.
    5. Insurance — Automobiles — No-Fault Insurance — Alighting From Vehicle — Causal Connection — No-Fault Benefits — Statutes.

      A plaintiff is entitled to recover no-fault beneñts where he is injured while alighting from a vehicle and the requisite causal connection between the vehicle and the injury is established (MCL 500.3105, 500.3106; MSA 24.13105, 24.13106).

      Sinas, Dramis, Brake, Turner, Boughton, McIntyre & Reisig, P.C. (by George T. Sinas), for plaintiff.

      James, Dark & Brill, for defendant State Farm Mutual Automobile Insurance Company.

      Foster, Swift, Collins & Coey, P.C. (by Michael J. Schmedlen), for defendant Liberty Mutual Insurance Company.
    Before: R. M. Maher, P.J., and M. J. Kelly and D. F. Walsh, JJ;
   M. J. Kelly, J.

Plaintiff, William Hathcox, brought an action against defendant insurance companies seeking to recover no-fault insurance benefits arising from injuries sustained when he fell from his employer’s truck-trailer. Both defendants and plaintiff filed respective motions for summary judgment. By order of May 5, 1978, the trial court granted the motions for summary judgment of defendants, and denied plaintiffs motion for a partial summary judgment. From that order, plaintiff perfects this appeal.

The facts underlying this appeal are not in dispute. Plaintiff, an employee of C & J Commercial Driveaway, Inc., of Lansing, Michigan, was loading new automobiles onto a truck-trailer on December 6, 1976. The truck-trailer was owned by his employer, who was insured by defendant, Liberty Mutual Insurance Company (hereinafter Liberty Mutual). After driving one of the automobiles onto the top deck of the truck-trailer and leaving the car, plaintiff slipped on the snow-covered deck and fell, sliding down the ramp to the ground. As a result, he suffered neck and back injuries which prevented him from working for over six months.

In denying plaintiffs motion for partial summary judgment, the trial court held that plaintiffs attempt to recover no-fault benefits from Liberty Mutual was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131). In so holding, the court reasoned that only where an employee is injured in his employer’s vehicle while not acting within the scope of his employment can the employee recover insurance benefits from his employer’s no-fault insurance carrier. Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977). The lower court further held that plaintiff was unable to recover from State Farm (plaintiffs own no-fault insurance carrier) due to a provision in State Farm’s policy excluding recovery for injuries sustained by its insured while occupying an employer’s vehicle.

Although the parties advance a host of issues in this appeal, our disposition requires that only two questions be discussed.

I. Whether plaintiff was an "occupant” of his employer’s motor vehicle at the time he sustained his injury, thus entitling him to recover no-fault insurance beneñts from his employer’s insurance carrier. MCL 500.3114(3); MSA 24.13114(3).

We find that plaintiffs injury did occur while he was an occupant of a motor vehicle owned by his employer. MCL 500.3114(3); MSA 24.13114(3). When interpreting insurance contracts, Michigan courts have construed the term "occupying” to embrace a zone of connection with the subject vehicle, thus including persons not actually inside the vehicle at the time of the injury.

The leading case illustrating this- point is Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975). In Nickerson, plaintiff was a passenger in a car when the vehicle stalled and plaintiff helped push it to the side of the road. Plaintiff reentered the car then left the car and walked around in front of it. An oncoming car struck the stalled vehicle in the rear, pushing it foward and injuring plaintiff. His right to recover under the insurance contract covering the host vehicle turned upon whether plaintiff was occupying the car at the time of the injury. In addressing this issue, the Court recognized that "there are two distinct lines of thought on this matter — one line of cases requires 'physical contact’ for recovery, the other line of cases holds that 'physical contact’ alone is not the operative test for coverage”. 393 Mich at 329. In rejecting the analytic approach which focused exclusively on physical contact, the Court stated:

"In sum, the approach to interpretation of this policy language which does not hold 'physical contact’ mandatory, appears to us to be by far the more reasonable and persuasive approach. It accords with a strict reading of the policy language, it well implements the time-honored policy of construction of policy language against the insurer, and, perhaps most significantly, as Judge McGregor and plaintiff point out, it guards against recovery based entirely upon 'fortuitous circumstance’.
"We conclude that plaintiff Nickerson, due to his immediate prior 'occupying’ of the insured vehicle and his subsequent injury arising out of the use or repair of the same vehicle, was an 'assured’ under the policy of automobile insurance issued by defendant.” Id. at 331-332.

We think Nickerson is significant in that it demonstrates the broad judicial interpretation afforded the term "occupying”. The breadth of this construction is also evident in other Michigan cases. For example, in Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), the decedent was deemed an occupant of a dumptruck when "standing on or next to” the dump box while examining or attempting to repair a malfunction in the dumping mechanism; similarly, in Collins v Motorists Mutual Ins Co, 36 Mich App 424, 428; 194 NW2d 148 (1971), the Court stated: "in that decedent was leaning over the trunk of his friend’s automobile, and had been within it shortly before he was struck, we believe he was 'occupying’ the vehicle at the time of his death”.

Here, plaintiff was engaged in the operation of loading his employer’s truck-trailer with automobiles; in doing so, he was obliged to repeatedly return to the truck’s cab in order to readjust the accelerator in conjunction with the operation of the hydraulic pump system; further, he fell down immediately after having driven an automobile onto the deck of the trailer. As in Nickerson, plaintiff was actually inside of the insured vehicle’s cab at various times during the automobile loading process and his subsequent injury arose out of his use of the truck and its trailer. We find, therefore, that plaintiff was an "occupant” of that vehicle within the meaning of MCL 500.3114(3); MSA 24.13114(3).

II. Does the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), prohibit plaintiff from recovering no-fault insurance beneñts from his employer’s no-fault carrier where plaintiff sustains bodily injuries while occupying his employer’s motor vehicle in the course of his employment?

The question raised in the present case is not one of first impression; to the contrary, it has been repeatedly considered by different panels of this Court with conflicting results. Mathis v Interstate Motor Freight System, supra, (holding that workmen’s compensation benefits were plaintiff’s exclusive remedy against his self-insured employer), Hawkins v Auto-Owners Ins Co, 83 Mich App 225; 268 NW2d 534 (1978) (holding that, because the exclusive remedy provision barred recovery only against the employer and not the employer’s insurer, an employee was entitled to recover personal protection benefits from his employer’s no-fault insurance carrier), Ottenwess, supra, (holding that, because the liabilities of insurers and self-insurers under the no-fault act are coextensive, the exclusive remedy provision of the Worker’s Disability Compensation Act barred recovery from the employer’s insurer as well as from the employer) (Allen, J. dissenting).

We find the reasoning of Judge Allen’s dissent in Ottenwess, supra, persuasive, and expressly adopt it. Accord, Hubert v Citizens Ins Co of America, 88 Mich App 710; 279 NW2d 48 (1979), Lewis v Yellow Freight System, Inc, 89 Mich App 66; 279 NW2d 327 (1979). After exhaustively reviewing the legislative history of the no-fault act and performing "a common sense reading” of MCL 500.3114(3); MSA 24.13114(3), Judge Allen concluded that "the Legislature intended to allow an employee to sue the employer’s no-fault insurer in situations where the employee was injured while occupying a vehicle owned by the employer”. Ottenwess, supra, at 302 (Allen, J. dissenting). We reverse the trial court and hold that plaintiff is entitled to personal protection insurance benefits as authorized by the no-fault insurance act. Liberty Mutual, as the no-fault insurance carrier of plaintiffs employer, C & J Commercial Driveaway, Inc., is required to furnish those benefits. MCL 500.3114; MSA 24.13114.

Because of our disposition of this issue, we do not reach the question of the liability of defendant State Farm to pay benefits under the policy issued to plaintiff.

We hold that plaintiff is not barred from recovering personal protection insurance benefits from his employer’s no-fault insurance carrier and that plaintiffs complaint states a cause of action under the no-fault act.

Reversed.

D. F. Walsh, J., concurred.

R. M. Maher, P.J.

(concurring). I concur in the result reached by the majority and in the reasoning of Issue II. However, I would find that plaintiff is entitled to recover no-fault benefits because he was injured while alighting from the vehicle and the requisite causal connection between the vehicle and the injury was established, MCL 500.3105; MSA 24.13105, MCL 500.3106; MSA 24.13106, see Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307; — NW2d — (1979).

       MCL 500.3114(3); MSA 24.13114(3) states:
      "(3) An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which he is entitled from the insurer of the furnished vehicle.”


source: Caselaw Access Project

author: D. F. Walsh, J.

license: Public Domain

text:
    PEOPLE v FAULKNER
    Docket No. 78-1847.
    Submitted April 5, 1979, at Lansing.
    Decided June 5, 1979.
    Leave to appeal applied for.
    Defendant, Danny Faulkner, was convicted of larceny and being an habitual criminal — fourth offense in Ingham Circuit Court, James T. Kallman, J. Prior to trial, defendant attempted to have excluded from evidence responses he made to questions posed by the director of the "halfway house” where defendant was a resident. The trial court allowed the statements into evidence. Defendant appeals. Held:

    The statements should have been excluded because defendant was not given Miranda warnings prior to the director’s questioning.
    Reversed.
    Criminal Law — Evidence — Miranda Warnings — Halfway House Residents.
    Statements made by a resident of a "halfway house” to the director of the house concerning a crime and in response to the director’s questions are not admissible in a prosecution of the resident for the crime where the resident was not given Miranda warnings prior to the questioning.
    References for Points in Headnote
    29 Am Jur 2d, Evidence §§ 555, 557.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054-1063.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Kathaleen Rae Price, Assistant Prosecuting Attorney, for the people.

      Kulick, Smith, Kistler & Colbert, for defendant on appeal.

      Before: R. M. Maher, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant, Danny Faulkner, was convicted by a jury of larceny of property having a value over $100, MCL 750.356; MSA 28.588. He was also found guilty of being an habitual offender —fourth offense, and was sentenced to a prison term of 7 to 30 years. The sole issue raised on appeal concerns the admissibility of a statement made by defendant. Defendant was not given his Miranda advice before the questioning began which gave rise to his statement. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

On the day of the alleged offense defendant was a resident at the New Way In in Lansing, Michigan. New Way In is a "halfway house” where certain prisoners from Jackson Prison are allowed to live prior to release on parole. Residents at New Way In are still considered inmates of Jackson Prison. MCL 791.265a(l)(b); MSA 28.2325(l)(l)(b). See 1978 AACS R 791.4401(3)(f), 791.4410, 791.4420, 791.4425.

Prior to trial, defendant moved to exclude from evidence a statement made by him on the day of the alleged offense to Wendell Rodgers, director of residency of New Way In. It was defendant’s contention that the statement was inadmissible since he had not been advised of his rights before Mr. Rodgers questioned him about the incident. The trial court denied the motion:

"First of all, we have to point out one distinction, this gentleman was not under arrest and not in custody because of an arrest, he was on inmate status halfway in or halfway out of Jackson, depending on how you want to phrase it, knowing full well he had certain rules and regulations he must comply with. You might even say that frankly he’s better off in a halfway house then he is in Jackson, it would seem to me he’d want to abide by those particular rules and regulations. Anyway, Meranda [sic] obviously deals with a custodial situation plus law enforcement officers. * * *
"At this particular point, and that is the police to police officers, I think we must use some, frankly, common sense in the application of this law and as I read the law in Michigan it does not apply to this type of situation and would not apply to an individual like Wendell Rogers [sic].”

We disagree with the trial court’s ruling and reverse defendant’s conviction.

Residents of New Way In are required to sign out with Mr. Rodgers whenever they leave the facility. They must also sign in with him upon return. At the time of his statement to Mr. Rodgers, defendant was signing in after returning from a morning of work with the Visiting Nurses Association. At the hearing on the motion to suppress, defendant testified that, if he had disobeyed the sign in/out rules, he would have been returned to Jackson. He testified that, on the day in question, Mr. Rodgers told him to remain in Rodgers’ office when he came to sign in after work. According to defendant, disobedience of Rodgers’ demand would have resulted in his return to prison.

At trial, Rodgers testified that he had received a phone call informing him that some items, including two rings, were missing from the home where defendant had worked on the morning of the day in question. When defendant arrived, Rodgers, without advising him of his rights, questioned him about the incident. Defendant responded that he knew nothing about it. Rodgers told defendant to empty his pockets. They were empty. During the next 15-20 minutes defendant repeatedly told Rodgers, in response to the latter’s questions, that he knew nothing about the incident. Rodgers then took defendant downstairs so that defendant’s possessions could be searched. Rodgers described this as "normal procedure for our operation”. When the men reached defendant’s locker, Rodgers again asked defendant if he knew anything about the incident. Defendant responded that he did. Rodgers then told defendant to accompany him to his office. Defendant told Rodgers that he had found a box containing two rings while emptying one trash container into another at the home that morning. Defendant told him that he had thrown the rings "around the corner” on his way home. Rodgers told defendant to show him where he had thrown the rings. They returned downstairs because defendant wanted to get something from his locker. While downstairs, defendant knelt down, reached under his bed, and produced two rings. They were later identified as those missing from the home where defendant had worked.

The issue is whether, in order to justify admission of defendant’s statement at trial, Rodgers was required to preface his questioning with the Miranda warnings. The prosecution argues that defendant was not in custody but was free to move around. Nor, argues the prosecutor, was defendant questioned by the police. Defendant counters by noting that he was an inmate of Jackson Prison and not a free individual at the time of the statement. Miranda applies, according to defendant, even though Rodgers is not a police officer.

The Supreme Court partly summarized its Miranda holding as follows:

"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” (Emphasis added.) 384 US 478.

In Mathis v United States, 391 US 1; 88 S Ct 1503; 20 L Ed 2d 381 (1968), the Supreme Court held that the reason a person is in custody does not affect the requirement that Miranda warnings be given. Also see State v LaRue, 19 Wash App 841; 578 P2d 66 (1978), where the Washington court noted that a prisoner is always in custody. It is the fact that the person being questioned is not free to go elsewhere that calls for application of Miranda. 19 Wash App 841, 846; 578 P2d 66, 69. And in People v Diesing, 67 Ill App 3d 109; 384 NE2d 575 (1978), it was concluded that an inmate of a work release center, when questioned by the center’s supervisor, was entitled to the Miranda warnings. Citing and analogizing to cases involving interrogation by parole and probation officers, the Illinois court noted that "both parolees and probationers are under heavy psychological pressure to answer inquiries made by their supervising officers”. 67 Ill App 3d 109, 111; 384 NE2d 575, 577. See, e.g., United States v Deaton, 468 F2d 541 (CA 5, 1972), also cited in People v Hardenbrook, 68 Mich App 640, 645-646; 243 NW2d 705 (1976). In Diesing, the defendant was found to have been in custody in that he was not free to leave his supervisor’s office and the questioning had focused on him. 67 Ill App 3d 109, 110-111; 384 NE2d 575, 576-577.

While Rodgers was not technically a police officer, he, as director of the New Way In, had substantial control over the movement of the residents. The record strongly suggests that the interrogation of defendant by Rodgers was, for all relevant purposes, indistinguishable from a police interrogation. Defendant was not free to refuse to answer Rodgers’ questions, to disobey his orders or to refuse to submit to Ids' searches.

We do not disagree with the holdings in People v Omell, 15 Mich App 154; 166 NW2d 279 (1968), and People v Leroy Morgan, 24 Mich App 660; 180 NW2d 842 (1970). Those cases are significantly distinguishable from the instant case. In People v Omell, supra, this Court held that a private investigator is not required to warn someone of his constitutional rights prior to taking a statement from him. The Court noted that "other jurisdictions have uniformly held that a person not a police officer, or not acting in concert with or at the request of police authority”, need not warn of constitutional rights before eliciting a statement. (Emphasis added.) 15 Mich App 154, 156-157. The Court in People v Leroy Morgan, supra, found no practical difference, for purposes of determining the applicability of Miranda, between a private security officer and the private investigator involved in Omell.

In contrast to the two foregoing cases, the instant facts strongly suggest significant authority on the part of Mr. Rodgers to restrict defendant’s freedom to move about and to suppress absolutely any inclination defendant may have had to decline to submit to his interrogation. As director of a facility designated by the Department of Corrections as a residence for prisoners classified to community status, Rodgers is considered an "authorized representative of the director” of the department. R 791.4425(3). As such, he certainly acts "in concert with or at the request of police authority”. People v Omell, supra, 157.

Defendant’s conviction is reversed for the reason that his statement was improperly admitted into evidence.

       That the investigation had "focused” on defendant has never been disputed. The "focus” element of the Miranda rule as interpreted by Michigan courts is, therefore, not at issue. See People v Brannan, 406 Mich 104; 276 NW2d 14 (1979).


author: R. B. Burns, P.J.

text:
    CEPLIN v BASTIAN-BLESSING DIVISION OF GOLCONDA CORPORATION
    Docket No. 78-2043.
    Submitted March 8, 1979, at Grand Rapids.
    Decided June 5, 1979.
    Plaintiff, Amel Ceplin, filed suit in Ottawa Circuit Court against defendant, Bastian-Blessing Division of Golconda Corporation, alleging that defendant breached the collective bargaining agreement between defendant and plaintiff’s union by failing to reemploy plaintiff following his recovery from disability. Defendant raised the affirmative defenses of laches and failing to exhaust the grievance procedure. Plaintiff averred in an affidavit that he attempted to obtain a grievance form from defendant through its agent and was told that no grievance could be filed. By the terms of the contract, defendant supplied the grievance submission forms. Defendant moved for summary and/or accelerated judgment and the court, Calvin L. Bosman, J., granted summary judgment of no cause of action. Plaintiff appeals. Held:

    1. An employee who attempts to exhaust his grievance procedure but is frustrated by conduct of the employer may obtain judicial review of his breach-of-contract claim.
    2. A motion for summary judgment on the ground that there is no genuine issue as to any material fact tests whether there is factual support for a claim or defense. Summary judgment was wrongfully granted. There was the issue of defendant’s repudiation of the grievance procedure which should have been tried but was decided by the court under the guise of determining that no issue of material fact existed.
    Reversed.
    Judgment — Summary Judgment — Genuine Issue of Material Fact — Standard of Determination — Court Rules.
    A motion for summary judgment on the ground that there is no genuine issue as to any material fact tests whether there is factual support for a claim or defense, thereby filtering out sham issues which may otherwise result in needless litigation; a trial court must carefully avoid making findings of fact under the guise of determining that no issue of material fact exists (GCR 1963, 117.2[3]).

      Reference for Points in Headnote
    73 Am Jur 2d, Summary Judgment §§ 1, 26, 27.

      Norman C. Halbower, P.C., for plaintiff.

      Scholten & Fant (by R. Neal Stanton), for defendant.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   R. B. Burns, P.J.

In this action plaintiffs complaint alleged that defendant wrongfully refused to reemploy plaintiff following plaintiffs recovery from disability, in violation of the collective bargaining agreement existing between defendant and plaintiffs union. Defendant raised the affirmative defense of laches for failure to file a grievance pursuant to the union contract and moved for accelerated and/or summary judgment. The trial court treated the motion as one for summary judgment under GCR 1963, 117.2(3), and granted it. Plaintiff appeals and we reverse.

Defendant’s motion was supported by an affidavit of Mr. Robert L. Walma, an officer of defendant company, which stated that plaintiff had not commenced the grievance procedure contained in the contract. Plaintiff submitted an affidavit in which he stated that, after his request for reemployment was turned down, he requested permission from Mr. Walma to file a grievance and was informed that under the contract the company had the sole right to make the determination of whether or not a man was employable and that no grievance could be filed on that subject. Mr. Walma filed a second affidavit denying that plaintiff had made the request for permission to file a grievance. The contract provides in pertinent part that:

"It is the intention of the parties that an employee and his supervisor will deal directly in their day-to-day relationships. However, the employee is always entitled to contact his Department Steward when he believes his supervisor has not applied the contract fairly.
"If the Union, or any employee * * * believes it or he has been aggrieved by the manner in which the Company interprets, applies or enforces the contract, it or he may seek redress in accordance with the following procedure.
"(a) By presenting the grievance through the Department Steward to the Department Manager within ten (10) work days from the date the incident occurred out of which the grievance arose. * * * The grievance will be written on a form supplied by the Company and will be signed by the employee. The grievance will specify the Article and Section allegedly violated and will request appropriate relief.”

The contract thereafter provides that if the grievance is not settled, various appeals may be taken.

In its opinion, the trial court stated that, even accepting as true plaintiffs statement that he had requested permission to file a grievance, the request did not comply with the contract requirements and plaintiff had not complied with the grievance and arbitration procedure provided for in the contract. On appeal, plaintiff argues that the employer is estopped from asserting that plaintiff failed to exhaust his administrative remedy.

Ordinarily, as a matter of Federal labor law, an employee may not maintain an action for an alleged breach of a collective bargaining agreement where the employee has not exhausted the grievance procedure established under the agreement upon which he bases his suit. Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967), Republic Steel Corp v Maddox, 379 US 650; 85 S Ct 614; 13 L Ed 2d 580 (1965), Pompey v General Motors Corp, 385 Mich 537, 560; 189 NW2d 243 (1971). One exception to this general rule is that an employee who at least attempts to exhaust the grievance procedure but is frustrated in that attempt by conduct of the employer which amounts to repudiation of the procedure may obtain judicial review of his breach-of-contract claim. Vaca v Sipes, 386 US 171, 184-185.

This Court has repeatedly admonished that the hyrid motion for accelerated and/or summary judgment is disfavored. See, e.g., Baker v Detroit, 73 Mich App 67; 250 NW2d 543 (1976), Hobbs v Michigan State Highway Dep't, 58 Mich App 189, 190, fn 1; 227 NW2d 286 (1975). Unless the basis for the motion is crystalized, the resulting procedural confusion may easily lead to error.

Failure to exhaust the grievance and arbitration procedure is an affirmative defense which should have been raised by way of accelerated, not summary, judgment. GCR 1963, 116.1(5), Pompey v General Motors Corp, supra, 563, Baker v Detroit, supra. The purpose of the accelerated judgment motion is to test certain special defenses which may make trial on the merits unnecessary, even though factual issues may have to be resolved in order to rule upon the motion. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 336. The purpose of GCR 1963, 117.2(3) is to test whether there exists factual support for a claim or defense, thereby filtering out sham issues which may otherwise result in needless litigation. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 358. Defendant was seeking to avoid trial by establishing a defense of failure to exhaust administrative remedies, and not by exposing plaintiffs breach of contract claim as lacking factual support.

Summary judgment was improper. It is unclear whether what should be brought by motion for accelerated judgment may ever be resolved under the summary judgment rule. The proper focus of a defendant’s motion for summary judgment should be upon whether plaintiffs claim lacks sufficient support, and not whether the factual support for its own defense is contested. There does exist a fact dispute here as to plaintiffs claim that defendant breached the employment contract. It may be that, if defendant’s motion revealed that there was no genuine dispute as to the fact that plaintiff failed to exhaust his administrative remedy, the dispute as to the facts concerning plaintiffs claim of breach of contract would be immaterial, and the motion properly granted. However, we need not resolve this issue, for, as in Baker v Detroit, supra, there do exist genuine issues of fact relating to the exhaustion defense.

Summary judgment is inappropriate under GCR 1963, 117.2(3) unless it appears that it is impossible for plaintiffs claim to be supported by evidence at trial. The court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist. Partrich v Muscat, 84 Mich App 724, 730-731; 270 NW2d 506 (1978).

Plaintiffs affidavit creates issues of fact concerning whether plaintiff at least attempted to invoke the grievance procedure, and whether defendant frustrated the attempt by repudiating the procedure. Vaca v Sipes, supra. The contract contemplates that employees will normally deal directly with their supervisors. If a dispute arises concerning the contract, the employee may contact his department steward, or may himself seek redress in accordance with the grievance procedure. Although the first step of the procedure is submission of a grievance through the department steward to the department manager, the first part of the first step is acquisition of a grievance form to be supplied by the company. A finder of fact could find that plaintiffs request for permission to file a grievance amounted to a request for a grievance form from the company, and was at least an attempt to invoke the grievance procedure. The employer’s response that no grievance could be filed on that subject could be found by a trier of fact to be a repudiation of the grievance procedure by the employer which frustrated plaintiffs attempt to invoke the procedure. Thus, it is possible that plaintiffs claim that the employer is estopped from invoking the grievance procedure would be supported by evidence at trial.

Had defendant’s motion been properly treated as one for accelerated judgment, the trial court in this nonjury case could have resolved the disputed fact issues by ordering immediate trial on those issues, or could have postponed resolution of those issues until trial. GCR 1963, 116.3. Instead, the trial court made findings of fact under the guise of determining that no issues of material fact existed. Partrich v Muscat, supra. This was reversible error.

Reversed. Costs to plaintiff.

       Of course, contrary inferences may also be drawn from the facts presented. We express no opinion as to the correct resolution of the factual dispute.


author: D. E. Holbrook, Jr., J.

text:
    CAPITOL CITY LODGE NO 141, FRATERNAL ORDER OF POLICE v MERIDIAN TOWNSHIP
    Docket No. 78-2602.
    Submitted March 7, 1979, at Lansing.
    Decided June 5, 1979.
    Leave to appeal applied for.
    The Charter Township of Meridian, pursuant to statutory authority, obtains police protection from the Ingham County Sheriff. The sheriff provides the deputies to serve the township and the township compensates the deputies directly. The deputies serving the township, through their bargaining representative Capitol City Lodge No. 141, Fraternal Order of Police, have a collective bargaining agreement with the township. The sheriff revoked the deputization of Sergeant Thomas Kintigh, one of the Meridian Township officers, for failure to appear at an investigatory interview unaccompanied by a union representative. Kintigh and the union filed an unfair labor practice charge against the township. The Employment Relations Commission determined that the township was bound by the acts of the sheriff, that the sheriff had violated the public employment relations act, and that, therefore, the township had violated the act. The township appeals. Held:

    The intention of the Legislature was that an “agent of a public employer” was to mean an agent as defined in the common law of agency. So defined, the county sheriff is not the agent of a township which utilizes the sheriff to provide police protection. Therefore, the actions of the sheriff are not to be imputed to the township.
    Reversed, and charges dismissed.
    1. Labor Relations — Public Employment Relations Act — Agent — Common Law — Statutes.
    An "agent of a public employer”, as used in the public employment relations act, is an agent as defined by the common law of agency (MCL 423.210[1]; MSA 17.455[10][1]).
    References for Points in Headnotes

       3 Am Jur 2d, Agency § 1.

       3 Am Jur 2d, Agency § 359.

       48A Am Jur 2d, Labor and Labor Relations § 1651.

       41 Am Jur 2d, Independent Contractors §§ 5-7.

      2. Agency — Agency Relationship — Question of Fact.
    The existence of an agency relationship is a question of fact to be determined by the trier of fact.
    3. Labor Relations — Employment Relations Commission — Findings of Fact — Statutes.
    The findings of the Michigan Employment Relations Commission with respect to fact questions are conclusive when supported by substantial evidence on the record (MCL 423.23[e]; MSA 17.454[25][e]).
    4. Sheriffs and Constables — Townships — Agency — Right to Control — Statutes.
    A township which calls upon a county sheriff to provide special police protection pursuant to statutory authority is limited in its right of control over the sheriff to the financial aspects of the relationship; the sheriff does not become an agent of the township, but rather, the relationship is that of an independent contractor and the actions of the sheriff are not to be imputed to the township (MCL 41.181; MSA 5.45[1]).

      R. David Wilson, for plaintiff.

      Foster, Swift, Collins & Coey, P.C. (by Theodore W. Swift, David Vander Haagen and Karen Bush Schneider), for defendant.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

This is an appeal by defendant Charter Township of Meridian from a decision of the Michigan Employment Relations Commission (MERC) in which MERC found that defendant had violated § 10 of the Michigan public employment relations act (PERA), MCL 423.210; MSA 17.455(10), by the actions of its agent, the sheriff of Ingham County, when he revoked the deputization of Sergeant Kintigh for the failure to appear at an investigatory interview unaccompanied by union representation. Defendant contends that the finding concerning the agency status of the sheriff of Ingham County was erroneous as a matter of law, and that, therefore, the MERC decision and order based upon it should be reversed.

Section 10 of PERA provides for unfair labor practices and defines prohibited activities. Its provisions are applicable to "a public employer or an officer or agent of a public employer”, MCL 423.210(1); MSA 17.455(10X1), as well as "a labor organization or its agents”, MCL 423.210(3); MSA 17.455(10)(3). PERA does not however contain a definition of the word "agent”, nor have the courts of this state been called upon to determine its precise meaning. The most logical explanation to the lack of an authoritative definition of "agent” as used in PERA is that the Legislature intended its meaning to be derived from the law of agency as it has been developed at common law. However, another equally plausible explanation is that the Legislature intentionally adopted § 10 of PERA in the form that it did with expectation that the Michigan courts would rely upon the legal precedents developed under the National Labor Relations Act, 49 Stat 449; 29 USC 151 et seq., to the extent that it applies to public sector labor relations. See Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 53; 214 NW2d 803 (1974). See also, Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich L Rev 885 (1973).

The National Labor Relations Act, 49 Stat 449; 29 USC 151 et seq. (1935), was the first step in establishing a nationwide private sector labor relations framework. Section 2(2) of NLRA defined the term "employer” to include "any person acting in the interest of an employer, directly or indirectly”. This section was interpreted by the United States Supreme Court as follows:

"The purpose of § 2(2) seems obviously to render employers responsible in labor practices for acts of any persons performed in their interest. It is an adaptation of the ancient maxim of the common law, respondeat superior, by which a principal is made liable for the tortious acts of his agent and the master for the wrongful acts of his servants. Even without special statutory provision, the rule would apply to many relations. But Congress was creating a new class of wrongful acts to be known as unfair labor practices, and it could not be certain that the courts would apply the tort rule of respondeat superior to these derelictions. Even if it did, the problem of proof as applied to this kind of wrongs might easily be complicated by questions as to the scope of the actor’s authority and of variance between his apparent and his real authority. Hence, it was provided that in administering this act the employer, for its purposes, should be not merely the individual or corporation which was the employing entity, but also others, whether employee or not, who are 'acting in the interest of an employer.’ ” Packard Motor Car Co v National Labor Relations Board, 330 US 485, 489; 67 S Ct 789; 91 L Ed 1040 (1947).

Thus, under the NLRA, the acts of other individuals, though not agents of the employer in the traditional common-law sense, would be imputed to the employer as long as those individuals were acting in the interest of the employer.

In June of 1947, the Congress, responding to court interpretation of the NLRA as well as other social pressures, enacted the Labor Management Relations Act, 61 Stat 136 (1947), commonly known as the Taft-Hartley Act, in order to amend the NLRA. In its amended version the term employer was defined as "any person acting as an agent of an employer, directly or indirectly”. 61 Stat 137; 29 USC 152(2). In addition Taft-Hartley created a new section, 2(13), which stated:

"In determining whether any person is acting as an 'agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.” 61 Stat 139; 29 USC 152(13).

In his analysis of the changes created by TaftHartley, Senator Taft said the following:

"Section 2(2), 2(13) and 301(e): The conference agreement in defining the term employer struck out the vague phrase in the Wagner act 'anyone acting in the interest of an employer’ and inserted in lieu thereof and the word 'agent.’ The term agent is defined in section 2(13) and section 301(e), since it is used throughout the unfair labor practice sections of title I and in sections 301 and 303 of title III. In defining the term the conference amendment reads 'the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.’ This restores the law of agency as it had been developed at common law.” 93 Congressional Record, 6858-6859 (June 12, 1947). (Emphasis supplied.)

It is clear from these amendments that the purpose of Congress in enacting the Taft-Hartley amendments was to restore the applicability of common-law agency principles of responsibility, and to preclude imputation of the acts of one person to another, except when one is acting as the agent for the other. International Ladies’ Garment Workers’ Union, AFL v National Labor Relations Board, 99 US App DC 64, 70; 237 F2d 545, 551 (1956). See also, National Labor Relations Board v United Ins Co of America, 390 US 254, 256; 88 S Ct 988; 19 L Ed 2d 1083 (1968), National Labor Relations Board v Local No 64, Falls Cities District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, 497 F2d 1335, 1336 (CA 6, 1974), International Brotherhood of Electrical Workers, AFL-CIO v National Labor Relations Board, 159 US App DC 242, 258; 487 F2d 1113, 1129 (1972), National Labor Relations Board v International Longshoremen’s and Warehousemen’s Union, Local 10, 283 F2d 558, 563 (CA 9, I960), United Mine Workers of America v Patton, 211 F2d 742, 747 (CA 4, 1954). This utilization of the common-law principles of agency on the Federal level convinces us that the Michigan Legislature, when it enacted PERA, intended the phrase "agent of a public employer” in § 10 to mean an agent as defined by the common law of agency.

In its decision, MERC interpreted the Taft-Hartley amendments as creating an expansive definition of agency, when it is clear these amendments intended a return to the common-law definition of agency. Based on this misinterpretation of the Taft-Hartley amendments, MERC held that the finding of the agency relationship did not depend upon rigid or technical applications of the principles of respondeat superior. It then determined that, by entering into a collective bargaining agreement with the union and by relying upon the Ingham County Sheriff to manage the daily operations of those employees represented by the union, Meridian Township became bound by the acts of the sheriff which affected this employment relationship.

The existence of an agency relationship is a question of fact to be determined by the trier of fact. Lincoln v Fairfield-Nobel Co, 76 Mich App 514; 257 NW2d 148 (1977), Birou v Thompson-Brown Co, 67 Mich App 502; 241 NW2d 265 (1976). MERC’s determination that Meridian Township is to be bound by the acts of the sheriff is in effect a determination that the sheriff of Ingham County was an agent of Meridian Township, even though not stated in those precise words. The findings of MERC with respect to fact questions are conclusive when supported by substantial evidence on the record. MCL 423.23(e); MSA 17.454(25)(e), MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974). Accordingly we must examine the relationship of the parties to determine whether there is substantial evidence to sustain a determination that the Ingham County Sheriff was an agent of Meridian Township in this instance.

The office of county sheriff is constitutionally created, Const 1963, art 7, § 4, and the duties and authority of the sheriff are established by statute. MCL 51.68 et seq.; MSA 5.861 et seq. The sheriff and the County Board of Commissioners are joint employers of deputy sheriffs, with the sheriff controlling their appointment and tenure in position, MCL 51.70; MSA 5.863, while the county commissioners establish the number of deputies to be employed as well as the compensation levels. MCL 51.242; MSA 5.892. See Local 1518, Council 55, American Federation of State, County & Municipal Employees, AFL-CIO v St Clair County Sheriff, 77 Mich App 145, 149-150; 258 NW2d 168 (1977), lv gtd 402 Mich 881 (1978). See also, Wayne County Library Board v Wayne County Board of Comm’rs, 78 Mich App 240, 245, fn 3; 259 NW2d 440 (1977).

The Charter Township of Meridian is a Michigan municipal corporation organized and existing pursuant to MCL 42.1 et seq.; MSA 5.46(1) et seq. Townships are specifically authorized to adopt and enforce ordinances, and for that purpose may "employ and establish a police department with full power to enforce local township ordinances * * * or may by resolution appropriate funds and call upon the sheriff of the county in which the township is located to provide special police protection for the township”. MCL 41.181; MSA 5.45(1). Since 1950 Meridian Township has called upon the Ingham County Sheriff to provide this protection as permitted by statute. When the county sheriff is so called upon to provide special police protection for a township, it is his duty to do so to the extent that township funds are appropriated. However, even though the township requesting such protection is obligated to pay the entire financial cost of this protection, the "[s]pecial township deputies appointed by the sheriff shall be under the jurisdiction of and solely responsible to the sheriff”. MCL 41.181; MSA 5.45(1).

Meridian Township, having called upon the Ingham County Sheriff to provide special police protection for the township, is obligated to pay the county for the services so rendered. The township, rather than making direct payments to the county, has entered into a collective bargaining agreement with Capitol City Lodge #141, representing the deputies assigned to Meridian Township, and satisfies its financial obligation to the county by direct payments to the officers concerned. The sheriff of Ingham County as well as the Ingham County commissioners, though the actual employers of the deputies assigned to Meridian Township, were excluded from the negotiation of this collective bargaining agreement and are not signatories to it. However, since neither are parties in this action, and since the county has accepted the benefit of this contract by permitting Meridian Township to assume their obligation to pay deputies appointed by the sheriff, we will not address the propriety of entering into a collective bargaining agreement such as this.

Having placed the relationship of the parties in its true perspective, we must now ascertain whether the sheriff is an agent of Meridian Township, utilizing common-law principles of agency. The right to control an agent is fundamental to the existence of an agency relationship. National Labor Relations Board v Local No 64, Falls Cities District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 497 F2d 1335, 1336 (CA 6, 1974). See generally, 2A CJS, Agency, § 6, and treatises and texts on agency. The sheriff is an elected official and acts in his own right. He is responsible for the law enforcement in Ingham County and was conducting a criminal investigation when the instant controversy arose. To hold as MERC did, that the sheriff is an agent of Meridian Township, requires a finding that Meridian Township has a right to control an elected official in the performance of his statutory duties, which finding would have no basis in law or fact. Additionally, it is clear from the record that Meridian Township did not have the actual ability to control the actions of the sheriff. They specifically requested that the sheriff not take the action he did, but were unable to prevent him from so acting.

When a township calls upon the county sheriff to provide special police protection pursuant to MCL 41.181; MSA 5.45(1) its right of control over the sheriff is limited to the financial aspects of this relationship. The deputies utilized to provide police protection are solely responsible to the sheriff, thus prohibiting the sheriff from becoming an agent of the township since the township has no right to control the sheriff’s direction of these deputies. Accordingly, we find that when a township calls upon the county sheriff to provide special police protection for the township pursuant to MCL 41.181; MSA 5.45(1) the sheriff’s relationship to the township is that of an independent contractor and the actions of the sheriff are not to be imputed to the township. MERC’s contrary determination that the sheriff was an agent of Meridian Township is not supported by substantial evidence. Accordingly, MERC’s decision and order is reversed and the charges are dismissed in their entirety. No costs, a public question being involved.


author: Beasley, J.

text:
    CARLSON v CITY OF TROY
    Docket No. 78-2877.
    Submitted March 20, 1979, at Detroit.
    Decided June 5, 1979.
    Harry E. Carlson and his wife Diane L. Carlson filed a complaint seeking a writ of mandamus to compel defendant, City of Troy, to approve an amended preliminary subdivision plat which the Troy city council had rejected. The preliminary plat was submitted to the city council with the recommendation of the city’s plan commission. The subdivision control ordinance for the City of Troy provided that a preliminary plat shall include: Indication of how all parcels identified as "outlots” or "excepted” and as determined by the planning director, could be developed in accordance with the requirement of the existing zoning district while maintaining an acceptable relationship to the layout of the proposed preliminary plat. The city council denied approval on the grounds that the proprietor failed to indicate future subdivision plans for all lands owned by him. Defendant presented no other reasons for rejection of the preliminary plat. A copy of the minutes containing this resolution was mailed to plaintiffs. Oakland Circuit Court, James S. Thorburn, J., granted mandamus. The court’s decision was based upon: (1) the city’s failure to set forth its reasons for rejection in writing on the face of the preliminary plat, and (2) the rejection of plaintiffs’ preliminary plat was not based upon any requirement found in the Subdivision Control Act. Defendant appeals. Held:

    1. Failure to set forth in writing on the face of the plat the reasons for declining tentative approval of plaintiffs’ preliminary subdivision plat was not a violation of the Subdivision Control Act by defendant city; consequently, it was not a reason for granting mandamus. According to the language of the statute the noting of acceptance must be set forth on the preliminary plat itself while if the plat is rejected the governing body is required to set forth in writing, not necessarily on the preliminary plat, its reasons for rejection and its requirements for tentative approval.

      References for Points in Headnotes

       52 Am Jur 2d, Mandamus § 64.

       52 Am Jur 2d, Mandamus § 494.

       82 Am Jur 2d, Zoning and Planning § 167.

       82 Am Jur 2d, Zoning and Planning § 166.

      2. The mailing of the minutes of the city council meeting, which contained the rejection of plaintiffs’ plat, satisfies the notice in writing requirement of the Subdivision Control Act.
    3. Plaintiffs’ real property, referred to as "all lands” in the Troy resolution, does not come within the definition of "out-lots” or "excepted” real property contained in the city’s subdivision control ordinance and was not a relevant permissible basis for rejection. Plaintiffs are not required to disclose future plans for their other property under the Subdivision Control Act, which governs local ordinances; therefore, the city’s reasons for rejection of plaintiffs’ preliminary subdivision plat and conditions for approval are outside of and in violation of the statute.
    4. Defendant has not indicated good and sufficient reasons for denying approval, nor are defendant’s requirements for tentative approval in conformance with the Subdivision Control Act. The grant of mandamus was proper.
    Affirmed.
    1. Mandamus — Conditions for Issuance — Clear Legal Right — Clear Legal Duty — Ministerial Act •— Burden of Proof — Judge’s Discretion.
    A writ of mandamus will issue only where a plaintiff has a clear legal right to performance of the specific duty sought to be compelled and a defendant has a clear legal duty to perform such act; the act must be a ministerial one and one where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.
    2. Mandamus — Appeal and Error — Evidence — Trial Court Findings — Abuse of Discretion.
    The Court of Appeals will not interfere with the granting of a writ of mandamus if there is evidence to support the trial court’s findings; a trial court’s ruling granting the issuance of a writ of mandamus will not be disturbed absent an abuse of discretion.
    3. Municipal Corporations — Subdivision Control Act — Preliminary Subdivision Plats — Approval and Rejection — Statement of Reasons — Statutes.
    A section of the Subdivision Control Act provides that a govern-mg body shall tentatively approve and note its approval on the copy of the preliminary plat within 90 days from the date of filing and return it to the proprietor, or set forth in writing its reasons for rejection and requirements for tentative approval; the last two clauses of the statute are independent clauses as is evidenced by the use of the disjunctive "or” which separates them; therefore, according to the language of the statute, if the preliminary plat is accepted, the noting of its acceptance must be set forth on the preliminary plat itself, but if the preliminary plat is rejected, the governing body is required to set forth in writing, not necessarily on the preliminary plat, its reasons for rejection and its requirements for tentative approval (MCL 560.112[2]; MSA 26.430[112][2]).
    4. Municipal Corporations — Subdivision Control Act — Subdivision Plats — Approval and Rejection — Statutes.
    An approving authority or agency having the power to approve or reject preliminary or final plats is required to condition approval upon compliance with, or base rejection upon, the provisions of the Subdivision Control Act and any ordinance or published rules of a municipality or county adopted to carry out the provisions of the subdivision statute (MCL 560.105, 560.106; MSA 26.430[105], 26.430[106]).
    5. Municipal Corporations — Subdivision Control Act — Municipal Subdivision Ordinances — Subdivision Plats — Outlots or Excepted Property — Proprietors — Proprietor’s Property — Future Subdivision Plans.
    A municipal subdivision control ordinance which proposes a condition that a preliminary subdivision plat shall include an indication of how all parcels identified as "outlots” or "excepted”, as determined by the planning director, cannot be the basis for rejection of a preliminary plat because of failure to indicate future subdivision plans for all lands owned by the proprietor, where all the lands of the proprietor do not come within the definition of "outlots” or "excepted” real property contained in the municipal ordinance, and the right to demand disclosure of the proprietor’s plans for his other property does not appear in the Subdivision Control Act.

      Booth, Patterson, Lee, Karlstrom & Steckling, for plaintiffs.

      William S. Wolanin, for defendant.

      Before: D. C. Riley, P. J., and M. J. Kelly and Beasley, JJ.
   Beasley, J.

Plaintiffs sought a writ of mandamus to compel defendant City of Troy to approve an amended preliminary plat which defendant, through its city council, rejected. Plaintiffs alleged that defendant violated § 106 and 112(2) of the Subdivision Control Act of 1967.

Defendant appeals of right the trial court’s judgment granting plaintiffs a writ of mandamus.

The record indicates that on March 28, 1978, the plan commission of defendant city passed the following resolution:

"RESOLVED, that the Plan Commission hereby recommends to the City Council that Tentative Approval be granted to the Preliminary Plat of Ironwood Subdivision (phases 1 and 2) subject of the following conditions:
"1. That the retention basin proposed in the northerly portion of the subdivision be located on lots which do not abut the Scott Lands Subdivisions.
"2. That the northerly cul-de-sac be revised to extend to the 200 foot strip exception extending to Livernois, and that a potential platting configuration be shown for that exception.”

On April 24, 1978, the preliminary plat was submitted to defendant’s city council with the plan commission recommendation. Plaintiffs’ preliminary plat was discussed and the matter was tabled.

On May 8, 1978, after further consideration, defendant’s city council denied approval of the preliminary plat, as follows:

"RESOLVED, that Tentative Approval of the Preliminary Plat for Ironwood Subdivision, located in the northeast one-quarter of Section 16, is hereby denied, because the proprietor fails to indicate future subdivision plans for all lands owned by said proprietor and adjoining the plat at the northeast corner and extending along the northern border of the Plat of Scott Lands, No. 2, from the extension of Elgin Street easterly to Livernois.”

A copy of the minutes containing this resolution was mailed to plaintiffs on May 11, 1978. Defendant has presented no other reasons for rejection of the preliminary plat.

The requirements for issuance of mandamus are:

" 'Plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one "where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” 38 CJ, p 598.’ Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935). See also Kortering v Muskegon, 41 Mich App 153; 199 NW2d 660 (1972). ”

This Court will not interfere with the granting of mandamus if there is evidence to support the trial court’s findings. Absent abuse of discretion, the trial court’s ruling will not be disturbed.

The trial judge’s order granting the issuance of the writ of mandamus was based on his interpretation of § 112(2) of the Subdivision Control Act of 1967, which states:

"(2) The governing body, within 90 days from the date of filing, shall tentatively approve and note its approval on the copy of the preliminary plat to be returned to the proprietor, or set forth in writing its reasons for rejection and requirements for tentative approval.”

The trial judge’s interpretation of the statute is indicated by the following colloquy with the city attorney:

"THE COURT: You didn’t put these reasons in writing on the preliminary plat, did you?
"MR. WOLANIN: The minutes of the council pursuant to affidavit presented by our City Clerk indicated these were transmitted to the plaintiff May 11.
"THE COURT: Forget being transmitted to the plaintiff.
"MR. WOLANIN: They were stated at the Planning Commission level.
"THE COURT: Let’s assume they were.
"MR. WOLANIN: They were stated at—
"THE COURT: Look at the statute. It says the governing body within 90 days from date of filing shall tentatively approve and note its approval on a copy of the preliminary plat to be returned to the proprietor, or set forth in writing its reasons for rejection or requirements for tentative approval.
"MR. WOLANIN: Is the Court saying that the reasons for rejection must be submitted on his own preliminary plat?
"THE COURT: That’s what it says.
"MR. WOLANIN: I don’t believe that is the way the thing should be construed. All it does is require written notification of the reason for refusal.
"THE COURT: I think you have to read the whole sentence.
"The Court is of the opinion the prayer should be granted. The Court will sign an order to that effect.”

We do not believe the wording of § 112(2) intended the restrictive reading that the trial judge imposed. The last two clauses of the statute are independent clauses as is evidenced by the use of the disjunctive "or” which separates them.

According to the language of the statute, if the preliminary plat is accepted, the noting of its acceptance must be set forth on the preliminary plat itself. However, if the preliminary plat is rejected, the last clause of § 112(2) comes into effect and requires the governing body to set forth in writing (not necessarily on the preliminary plat) its reasons for rejection and its requirements for tentative approval. Section 112(2) serves as a notice provision as is apparent from the mandatory language which sets forth the mechanics for approval and rejection.

Review of the Subdivision Control Act of 1967 in its entirety reveals good reason why approval of the preliminary plat must be made "on the copy of the preliminary plat to be returned to the proprietor”, while rejection need not be made on the copy of the preliminary plat although the reasons for objection must be in writing.

For example, under § 112(4), tentative approval gives the proprietor approval of "lot sizes, lot orientation and street layout for a period of one year”. Under some circumstances, approvals must be obtained from the county road commission, the county drain commission, the state highway department, the water resources commission and the health department having jurisdiction. Each of the foregoing sections of the statute provide substantively as follows:

"* * * and note its approval on the copy to be returned to the proprietor, or reject it. If rejected, the reasons for rejection and requirements for approval shall be given the proprietor in writing.”

It is evident that while it is practical and important to have the approvals and the dates of approval on the face of the plat, it would be cumbersome and impractical to place on the face of the plat reasons for rejection and requirements for approval. If the Legislature had desired that undesirable result, it would have been easy to provide language to that effect, e.g., "note its approval or rejection on the plat”.

Thus, we find that failure to set forth in writing on the face of the plat the reasons for declining tentative approval was not a violation of the statute by defendant city and, consequently, was not a reason for granting mandamus. We further find that the mailing of the minutes of the city council meeting to the plaintiffs satisfies the notice in writing requirement of § 112(2). But, this is not to say that the contents of the resolution, i.e., the reasons for denying tentative approval, fell within the permitted range of lawful reasons for denial.

Granting of mandamus by the trial court appeared to be based on two premises: (1) that defendant city failed to comply with § 112(2) and (2) that "rejection of Plaintiff’s Preliminary Plat was not based upon any requirement found in Section 105 of 1967 PA 288”.

MCL 560.106; MSA 26.430(106) states:

"Sec. 106. No approving authority or agency having the power to approve or rejéct plats shall condition approval upon compliance with, or base a rejection upon, any requirement other than those included in section 105.” (Emphasis added; footnote omitted.)

Section 105 of the Subdivision Control Act of 1967, MCL 560.105; MSA 26.430(105), reads in pertinent part as follows:

"Sec. 105. Approval of preliminary and final plats shall be conditioned upon compliance with:
"(a) The provisions of this act.
"(b) Any ordinance or published rules of a municipality or county adopted to carry out the provisions of this act.”

Subsections (c) through (g) which follow are not relevant here.

Pursuant to subsection (b) of § 105 of the act, defendant enacted ordinance number 41, which is the subdivision control ordinance for the City of Troy. Section 3.01(a)(4)(E) of this ordinance reads as follows:

"Proposed Conditions — Preliminary Plat Shall Include:
"(E) Indication of how all parcels identified as 'out-lots’ or 'excepted’. and as determined by the Planning Director, could be developed in accordance with the requirement of the existing zoning district while maintaining an acceptable relationship to the layout of the proposed preliminary plat.”

Defendant argues that the reason for rejection of the preliminary plat was failure to comply with this ordinance. In denying tentative approval, the city council referred to the proprietor’s (plaintiffs’) failure "to indicate future subdivision plans for all lands owned by said proprietor and adjoining the plat at the northeast corner and extending along the northerly border of the plat of Scott Lands No. 2”. This real property (referred to as "all lands” in defendant city’s resolution) does not come within the definition of "outlots” or "excepted” real property contained in subsection (E) of the ordinance. Since § 106 of the statute limits the matters, or the subjects which may be a basis for rejection, the requirements for approval specified in defendant city’s resolution must be within those specific matters delineated in § 105.

As indicated under its quoted ordinance, defendant city may only require platters to indicate future development of parcels designated as "out-lots” or "excepted” real property, as the terms are used in subsection (E) of the ordinance. Thus, defendant city’s resolution is not a relevant, permissible basis for rejection on this record. The stated reasons for rejection and conditions for approval are outside of and in violation of the statute.

In summary, while we do not believe that reasons for rejection of a proposed preliminary plat need to be set forth on the face of the plat, we find that, on this record, defendant has not indicated good and sufficient reasons under the cited statutes for denying approval, nor are the requirements for tentative approval in conformance with the statute. Therefore, the grant of mandamus was proper.

Affirmed, with costs.

       MCL 560.106; MSA 26.430(106), MCL 560.112(2); MSA 26.430(112X2).

        Hessee Realty, Inc v Ann Arbor, 61 Mich App 319, 322; 232 NW2d 695 (1975).

        South Looking Glass Drain District Board v Grand Trunk Western R Co, 357 Mich 215; 98 NW2d 543 (1959).

       MCL 560.112(2); MSA 26.430(112)(2).

       See, Cunningham, Public Control of Land Subdivision in Michigan: Description and Critique, 66 Mich L Rev 3, 41 (1967).

       MCL 560.113; MSA 26.430(113).

       MCL 560.114; MSA 26.430(114).

       MCL 560.115; MSA 26.430(115).

       MCL 560.117; MSA 26.430(117).

       MCL 560.118; MSA 26.430(118).

       See, MCL 560.113; MSA 26.430(113).


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

text:
    PEOPLE v MONET
    Docket No. 77-966.
    Submitted October 5, 1978, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Rafig M. Monet was convicted of manslaughter, Wayne Circuit Court, Thomas J. Brennan, J. Two previous trials had ended with deadlocked juries. Defendant alleged at trial that he had been coerced into making a confession and that part of that coercion consisted of intimidation by a police officer who administered a polygraph examination to the defendant. The defendant was not allowed to testify to the officer’s threats because of the rule prohibiting the introduction of evidence of a polygraph examination. Defendant was also not allowed to introduce a banking record of the deceased showing a large transaction in support of the defendant’s theory that the deceased may have been killed as a result of his involvement in drug trafficking. Defendant appeals. Held:

    1. The testimony regarding the intimidation by the polygraph examiner was improperly excluded. The testimony could have been given without reference to the polygraph, and in the first two trials it had in fact been so given. Exclusion of the testimony deprived the defendant of much of his coercion defense.
    2. Exclusion of the bank records was also improper, as the records were probative of the defendant’s theory of the case, and their exclusion deprived the defendant of part of his defense.
    Reversed and remanded.
    M. J. Kelly, J., dissented. He would hold that under the circumstances of this case the exclusion of the testimony regarding the alleged intimidation was not an abuse of the trial court’s discretion, nor was the exclusion of the bank records an abuse of discretion where the other facts adduced at trial did not support the inference that the deceased was involved in drug trafficking. He would affirm.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 831.

       29 Am Jur 2d, Evidence §§ 542, 590.

       30 Am Jur 2d, Evidence § 928.

       29 Am Jur 2d, Evidence §§ 251, 253, 256.

       29 Am Jur 2d, Evidence § 543.

       30 Am Jur 2d, Evidence §§ 928, 950.

      Opinion of the Court
    1. Criminal Law — Evidence — Polygraph Examinations. Evidence that an accused was subject to a polygraph examination and the results of that examination are not admissible at trial.
    2. Criminal Law — Confessions — Coercion — Evidence.
    A trial court erred in excluding testimony by a defendant that he had been coerced into making a confession by a police officer who administered a polygraph examination; the fact that the alleged coercion occurred during the course of a polygraph examination need not have been revealed to the jury, and the exclusion of the testimony was reversible error where it effectively deprived the defendant of much of his coercion defense.
    3. Criminal Law — Evidence — Banking Transactions.
    The records of certain banking transactions of a deceased, offered by a defendant in a homicide case in an effort to support his defense that the deceased may have been killed as the result of trafficking in drugs, were erroneously excluded where the prosecution was permitted to introduce records of "normal banking transactions” of the deceased and where the excluded records were probative of facts supporting the defendant’s theory.
    Dissent by M. J. Kelly, J.
    4. Evidence — Exclusion of Evidence — Judge’s Discretion — Rules of Evidence.

      A trial court is permitted to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, and a trial judge’s exercise of discretion should be upheld unless he acted arbitrarily or irrationally (MRE 403).

    5. Criminal Law — Evidence — Polygraph Examinations — Confessions — Coercion.

      A trial court properly excluded testimony by a defendant that he had been coerced into making a confession by a police officer who administered a polygraph examination to the defendant, where the defendant’s allegations in this regard were unsup

      ported by any other competent evidence and where other allegations of coercion were substantially aired before the jury.

    6. Criminal Law — Evidence — Defendant’s Theory of Case.

      Evidence of a single banking transaction of a deceased, which the defendant sought to introduce in order to support his theory that the deceased had been involved in drug trafficking, was properly excluded where the other facts adduced at trial did not support the inference that the deceased had been involved in drug trafficking.

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

      Noel D. Culbert, for defendant.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant appeals as of right his conviction of manslaughter, MCL 750.321; MSA 28.553, following his third trial on charges of second-degree murder, MCL 750.317; MSA 28.549.

The defendant had originally been charged with the second-degree murder of one Mohammed Tahir Khan. The prosecution alleged that the homicide had taken place on February 15, 1976. The badly-decomposed body of the deceased was found on June 10, 1976, in the trunk of his car in a shopping center in the city of Southgate, Michigan. Identification was made through fingerprints and the apparent cause of death was strangulation. The defendant had three trials in this case, the first two ending in jury deadlock. The third jury ultimately convicted the defendant of manslaughter.

The events of record below which follow form the basis of the defendant’s issues raised on appeal, and indeed, constitute the bulk of the prosecution’s case against the accused. After the discovery of the deceased’s body, the police investigators learned that the defendant’s stepdaughter, Rah-mat Monet, had become pregnant as a result of an affair with the deceased; moreover, the girl had had an abortion in February, 1976. This information, because it supplied a motive, convinced the police that defendant was a likely suspect in the homicide. He was advised of his constitutional rights on July 7, 1976, and told police that he understood his rights and would cooperate with them. He denied knowing that his stepdaughter was pregnant or that the deceased had anything to do with it.

On July 10, 1976, the defendant indicated he would cooperate with the police by taking a polygraph examination. He was taken to the Michigan State Police post in Detroit where he met briefly with Sgt. Chester Romatowski, a polygraph operator. The defendant and Romatowski were alone together for 1-1/2 hours during the polygraph examination. After this period, the defendant indicated that he wanted to make a statement. The statement given constituted a confession by the defendant that he had killed the deceased.

The defense strategy in each of the defendant’s trials was to create a reasonable doubt in the minds of the jury by contesting the voluntariness of defendant’s confession and by presenting alternative theories explaining the decedent’s death. To this end, defendant presented allegations of coercion from three distinct sources, (threatening telephone calls, conversations with his cousin, and from Sgt. Romatowski), and presented testimony which, arguably, led to the inference that the deceased had been murdered as a result of a feud in the Pakistani community or because of involvement in drug trafficking. As a consequence of this strategy, a theme running through defendant’s first two issues is the tension between the defendant’s right to present a defense and the duty of the trial court to maintain an orderly progression of witnesses and evidence, thus giving the jury an organized presentation of the facts and issues.

Of defendant’s four issues raised on appeal, we need address only two and reverse for yet another trial.

First, defendant asserts that the trial court erred in forbidding inquiry by defense counsel as to possible coercion of the defendant by Sgt. Romatowski during the time they were alone together. We agree with the defendant’s contention that the exclusion of this testimony constituted reversible error.

As previously noted, defendant sought to discredit the confession given immediately after the 1-1/2 hour polygraph test by asserting a coercion defense. The trial court excluded inquiry into what transpired during that 1-1/2 hour period for the reason that the prosecution would be unable to inform the jury of the taking of the polygraph test and its results. Therefore, it would be unfair to permit the defendant to raise the police coercion issue where the prosecution was in no position to rebut defendant’s allegations.

At trial, Sgt. Henry, who had investigated the homicide, testified on direct examination that defendant was not coerced at any time during the day on which the polygraph was administered. Before defense counsel had the opportunity to cross-examine, the prosecutor moved that the defense be prohibited from asking questions concerning the time that defendant spent with Sgt. Romatowski. This motion was granted by the trial court. When defendant later took the stand, the prosecution was allowed to question the accused as to the lack of coercion during the taking of the statement. Defense counsel objected, and pursuant to a lengthy argument, the court ultimately agreed that the prosecution had engaged in an unfair tactic. Sgt. Romatowski himself further testified on direct examination that no threats or coercion were used in obtaining defendant’s statement.

The prosecution argues that the ban against evidence of polygraph tests and their results precluded defendant’s coercion testimony. While it is true that Michigan law specifically forbids both the introduction of evidence that an accused was subject to a polygraph test and its results, People v Frechette, 380 Mich 64; 155 NW2d 830 (1968), People v Bush, 54 Mich App 77, 80; 220 NW2d 333 (1974), lv den 393 Mich 755 (1974), see also People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), such facts were easily separable from evidence pertinent to defendant’s coercion defense in the case at bar. All the jury need have known was that Sgt. Romatowski had interrogated the defendant. In fact, during each of the first two trials, defendant testified that he felt intimidated by Sgt. Romatowski; that the officer had raised his voice, shook his fist, and threatened him. At both proceedings, Sgt. Romatowski effectively asserted in rebuttal that he did nothing to intimidate the defendant, nor did anything to coerce the statement other than accuse defendant of lying. Thus, two previous juries had gone through the same evidence without notice of any impermissible reference to the polygraph examination. There is no valid reason why the same could not have been true here. Defendant should have been allowed to present evidence to the jury in support of his theory of the case, and the court’s ruling prohibiting that evidence constituted error. As it effectively deprived defendant of much of his coercion defense, we cannot conclude that it was harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Sherman Hall, 77 Mich App 456, 461; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978), People v Heard, 58 Mich App 312, 316; 227 NW2d 331 (1975), lv den 400 Mich 812 (1977). We express dismay over the necessity of a fourth trial in this matter. Nevertheless, we are convinced that the magnitude of error presented here compels our disposition.

We briefly review one other allegation of error that may arise again at trial. Defendant claims that the trial court improperly excluded proffered evidence of the deceased’s bank records. As noted, a substantial part of the defense was the propounding of alternative theories explaining the killing. Defendant argued that the deceased might have been killed as a result of a feud in the Pakistani community or as a result of his involvement in drug trafficking. As a means of substantiating the latter theory, defendant sought to introduce the deceased’s bank records which indicated only that there had been an $11,000 deposit and withdrawal approximately six weeks prior to the murder.

Other evidence at trial served to refute defendant’s claim; however his allegation was not without support. Igbal Monet testified that the deceased had previously, in his presence, sold packages wrapped in aluminum foil.

When defendant attempted to introduce the bank records, the prosecutor objected on the basis that the evidence was "prejudicial”. However, no exception was made to the introduction of "normal banking transactions” of the deceased. When the prosecutor was permitted to detail the records which were admitted, he characterized those as being "normal” without having to explain the $11,000 transaction. This, like the exclusion of the testimony above regarding the allegedly coercive interrogation, simply deprived defendant of part of his defense. Absent any showing that it was inadmissible as hearsay, or that the bank entry was incorrect, the jury should have been allowed to consider this information. People v Nickopoulous, 26 Mich App 297, 302; 182 NW2d 83 (1970), lv den 384 Mich 807 (1971). The records were probative, in that they indicated, if believed by the jury, that the deceased was involved in drug trafficking.

Reversed and remanded for proceedings consistent with this opinion.

Bronson, P.J., concurred.

M. J. Kelly, J.

(dissenting). I am convinced from a reading of the partial transcript (permitted upon defendant-appellant’s request), the briefs and the exhibits that the defendant’s belated claim of police coercion was completely makeweight. The defendant’s confession, given after full and fair Miranda warnings, revealed that when defendant confronted the victim about his stepdaughter’s pregnancy the deceased laughed at him. The defendant then strangled him, put his body in the trunk, left the car in Southgate and made out a missing person’s report.

This record does not document the fact of the time interval during which defendant was interrogated by the polygraph operator. This is a difficult and sensitive area and, while People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), sanctions polygraph examinations for limited purposes, the black letter law in this state is still that neither the fact of the taking nor the results obtained are admissible in a criminal prosecution. The trial court, therefore, was called upon to exercise its discretion with regard to the conversation, interview and test conducted by Sgt. Romatowski. The court decided not to allow the defendant to claim that he was intimidated by the examiner raising his voice, shaking his fist and threatening him when, on the other hand, the prosecution could not counter with the examiner’s complete denial that any such intimidation occurred and the fact that defendant was shown to be lying on 10 out of the 11 questions relating to the murder. I am not convinced that the trial court erred in its original ruling.

MRE 403 permits the trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The committee note to the rule states that MRE 403 is identical with Rule 403 of the Federal Rules of Evidence. The Federal cases on this point indicate that broad discretion must be accorded a trial judge in determining the question of whether probative value of relevant evidence is outweighed by other considerations. The trial judge’s exercise of discretion should be upheld unless he acted arbitrarily or irrationally. United States v Robinson, 560 F2d 507 (CA 2, 1977), United States v Higgins, 458 F2d 461 (CA 3, 1972).

In the instant case, defendant’s allegations of coercion by the police investigator were unsupported by any other competent evidence. Moreover, these allegations were rebutted, in both of the prior trials, by the testimony of Sgt. Romatowski that no coercion had occurred during the course of the polygraph examination. Indeed, the defendant did not even call the stenographer who took down his statement as a witness regarding the circumstances that existed at the time the statement was taken. Furthermore, the record indicates that the defendant was permitted to present his other allegations of coercion, resulting from mysterious threatening telephone calls made by an unknown person and conversations with his cousin, to the jury. In light of the all-embracing coercion trial strategy adopted by the defendant, and the fact that other allegations of coercion were substantially aired before the jury, I find no abuse of discretion in the trial court’s decision to limit the defendant’s testimony on a point which could have added further confusion to this case. United States v Harris, 542 F2d 1283 (CA 7, 1976), cert den sub nom Clay v United States, 430 US 934; 97 S Ct 1558; 51 L Ed 2d 779 (1977).

As to the other allegation of error addressed by the majority, I would likewise find that the trial court properly exercised its discretion. A substantial part of the defense strategy was the propounding of alternative theories explaining the killing. Defendant argued that the deceased might have been killed as a result of a feud in the Pakistani community or as a result of his involvement in drug trafficking. As a means of substantiating the latter theory, the defendant sought to introduce the deceased’s bank records which indicated only that there had been an $11,000 deposit and withdrawal approximately six weeks prior to the murder. Defendant argues that the exclusion of this evidence served to deprive him of a defense.

I repeat, the trial judge enjoys a wide discretion in the admission or exclusion of relevant evidence. MRE 403. In the present case, the other facts adduced at trial did not support the inference that the deceased had been involved in drug trafficking. The only testimony suggesting an inference of drug trafficking was that of Igbal Monet, stepson of the defendant, who testified that he had seen the deceased selling packages wrapped in aluminum foil. In contrast, all of the other testimony on the "drug trafficking” question rebutted that inference. Sgt. Henry of the Southgate Police testified that a check with various police agencies turned up no criminal record and failed to show that the deceased had been involved in any criminal activities. Similarly, an examination of a camera allegedly involved in drug smuggling indicated no drug residue in its interior. Witness Mohammed Ashraf Khan testified that the deceased had never dealt in drugs. Indeed, even the defendant himself testified on both direct and cross-examination that, in spite of his close friendship with the deceased, he had never known the deceased to either sell or use drugs.

Again, I find no abuse of trial court discretion. Here, the court was confronted with a plethora of coercion allegations and makeshift theories explaining decedent’s death. In the presence of such a palpable dearth of testimony substantiating defendant’s drug trafficking allegations and the possibility that such evidence might further confuse the jury, I am not prepared to hold that the trial court abused its discretion in excluding the evidence.

I would affirm.

       It would appear that records of the $11,000 deposit and withdrawal would be admissible, even though hearsay, as they were kept in the ordinary course of business. People v Kirtdoll, 391 Mich 370; 217 NW2d 37 (1974). See also MRE 803(6).

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

       "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”