author: R. E. A. Boyle, J.

text:
    PEOPLE v CASTANEDA
    1. Witnesses — Criminal Law — Unavailable Witnesses — Privilege Against Self-Incrimination — Statutes.
    A witness who refuses to testify at trial, asserting his privilege against self-incrimination, may properly be found to be unavailable for purposes of a statute which allows introduction of an unavailable witness’s preliminary examination testimony, and no prejudice resulted to a defendant from introduction of such a witness’s prior testimony where defense counsel had been present at the earlier hearings at which the testimony was given and where defense counsel admittedly communicated with the witness prior to trial and was not surprised at the witness’s assertion of privilege (MCLA 768.26; MSA 28.1049). 2. Witnesses — Criminal Law- — Res Gestae Witnesses — Indorsement —Production—Due Diligence — Appeal and Error.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 758.
    Claim of privilege by a witness as justifying the use in criminal case of his testimony given on a former trial or preliminary examination. 45 ALR2d 1354.

       81 Am Jur 2d, Witnesses § 74.

       81 Am Jur 2d, Witnesses § 518 et seq.

       81 Am Jur 2d, Witnesses §§ 569-586.
    Prior conviction: effect of prosecuting attorney asking defense witness other than accused as to prior convictions where he is not prepared to offer documentary proof in event of denial. 3 ALR3d 965.

       81 Am Jur 2d, Witnesses §§ 432, 433.

       81 Am Jur 2d, Witnesses §§ 500-504.

       75 Am Jur 2d, Trial § 724.

       75 Am Jur 2d, Trial §§ 775-779.
    Propriety under Griffin v. California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify. 18 ALR3d 1335.
    Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused’s failure to testify. 14 ALR3d 723.
    Violation of Federal constitution rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused’s failure to testify, as constituting reversible or harmless error. 24 ALR3d 1093.

      Failure of the prosecution to indorse and produce a res gestae witness may be excused when the prosecutor makes a showing of due diligence in searching for the witness, and a trial judge’s finding of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown.
    3. Witnesses — Criminal Law — Res Gestae Witnesses — Impeachment — Statutes.
    The people are obligated to call res gestae witnesses to testify in a criminal trial, whether their testimony is favorable or unfavorable, and a res gestae witness so called may be impeached by the prosecution the same as though the witness had been called by the defendant (MCLA 767.40a; MSA 28.980[1]).
    4. Witnesses — Criminal Law — Impeachment—Prior Felony Convictions — Prejudice.
    A witness may be impeached by inquiry about prior felony convictions, but a pfosecutor should present the witness for whatever testimony he has to give before attempting to impeach him; a defendant was not prejudiced by the prosecutor asking a witness, as his first question, about a prior conviction where the question was objected to before it was answered, the witness did not answer and a curative instruction was given.
    5. Witnesses — Criminal Law — Character Witnesses — Defendant’s Prior Convictions — Prejudice.
    A defendant was not prejudiced where the prosecutor asked the defendant’s character witness whether she knew of a prior conviction of the defendant where the question was objected to, the objection was sustained, and the jury was instructed to disregard it because there was no such prior conviction and where the record shows no bad faith on the part of the prosecutor because there was an error in the conviction record.
    6. Witnesses — Character Witnesses — -Cross-Examination—Misconduct of Defendant.
    Prior clearance should be obtained from the trial judge as to the questioning on cross-examination of any character witness regarding any alleged misconduct of a defendant.
    7. Drugs and Narcotics — Aiding and Abetting — Instructions to Jury.
    A trial court properly instructed a jury on aiding and abetting where the defendant, who was charged with delivery of heroin, maintained that another person was -the drug dealer and where from the testimony at trial it would be reasonable for the jury to believe that the other person was the dealer or supplier and that the defendant had assisted in effecting the saie for which he was charged.
    8. Witnesses — Criminal Law — Refusal to Testify — Opportunity to Cross-Examine.
    A defendant was not prejudiced by a witness’s refusal to answer certain questions at trial because of a claim of Fifth Amendment rights and by the subsequent reading to the jury of the witness’s testimony from the preliminary examination and at a guilty plea revocation hearing where the defendant vigorously cross-examined the witness at the preliminary examination and presented evidence in his own behalf at the hearing, the testimony which the witness did give at trial exculpated the defendant, and the witness did appear before the jury.
    9. Criminal Law — Instructions to Jury — Adverse Inferences— Witnesses — Failure to Testify — Appeal and Error — Preserving Question.
    A sua sponte instruction that the jury may not draw any adverse inference because of a witness’s refusal to testify need not be given, and where a defendant did not request such an instruction the issue of whether the trial court erred by not giving such an instruction is not properly preserved for appeal.
    Appeal from Ingham, Michael G. Harrison, J.
    Submitted January 9, 1978, at Lansing.
    (Docket No. 77-676.)
    Decided February 22, 1978.
    Guadalupéz B. Castaneda was convicted of delivery of heroin. Defendant appeals.
    Affirmed.

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

      Earl J. Fretz and H. Eugene Bennett, for defendant on appeal.

      Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   R. E. A. Boyle, J.

Defendant was convicted by a jury of delivery of heroin in violation of MCLA 335.341(l)(a); MSA 18.1070(41)(l)(a), and was sentenced to 5 to 20 years imprisonment. He appeals as of right.

The pertinent facts are as follows: On July 28, 1975, in the City of Lansing in this state, an undercover police officer was working with one Alfredo (Freddy) Velasquez, a paid informant, who was to set up a drug deal with defendant. After the deal was arranged, according to the testimony, the officer left Velasquez with defendant while the officer went to get the necessary money for the buy and also police assistance. The officer had been assured by defendant that the heroin would be delivered upon his return.

When the officer returned to the arranged meeting place at 500 East Grand River in Lansing, he was met by Velasquez, who showed him the heroin, which was in a bag in the nearby bushes. Defendant was nearby, and the officer testified he never saw this bag in defendant’s possession. When the officer attempted to pay defendant, he refused receipt of the money and the arrest was then made..

At the preliminary examination, Velasquez testified as to arranging with defendant for the drug sale to the officer; that he had known defendant for five or six years and had previously dealt with him in drug transactions; that initially defendant was reluctant to deal with him on this occasion because of rumors Velasquez was a police informant; that defendant eventually agreed to deal with Velasquez and provided a sample for him to try. He testified further that after the officer left to get some money to pay for the drug, defendant took the heroin from his possession and placed it in some bushes. Velasquez identified the heroin as that placed in the bushes by defendant. On the basis of the testimony by the officer and Velasquez, defendant was bound over for trial.

On May 10, 1976, pursuant to a plea agreement, defendant entered a plea of guilty to possession of heroin. However, on May 24, 1976, after a hearing, defendant’s motion to vacate the plea was granted. At this hearing, Velasquez repudiated his testimony at the preliminary examination, stating defendant had never given him a sample to try and that the heroin that caused the arrest of defendant actually belonged to Velasquez and had been placed there earlier. He referred to one Jesse Garcia as the person who was the real drug dealer.

The trial judge ordered the guilty plea of defendant vacated and recommended perjury charges against Velasquez. After a motion to dismiss because of entrapment and a motion to quash the information were filed and denied, trial was had before a jury as a result of which defendant was convicted.

Defendant raises a number of issues, each of which we will discuss. We note from the record at the outset that the trial was marked with frequent wrangling between counsel and that the trial judge had the difficult task of keeping the trial under control.

Defendant contends the informant, Velasquez, was improperly declared an unavailable witness— thus permitting the introduction of his testimony from the preliminary examination — when he claimed his Fifth Amendment privilege because of pending perjury charges against him arising out of his repudiation of his testimony at the preliminary examination. Defendant claims he was denied an adequate opportunity to prepare for argument about his unavailability, and that he should not have been declared unavailable because the prosecutor should have either granted Velasquez immunity or agreed to continue the case in order to dispose of the pending perjury charges against the witness.

We find no merit in defendant’s claim as to this issue. Defense counsel was present at the hearing oh defendant’s plea withdrawal where the trial court recommended perjury charges be considered against Velasquez, who there repudiated his preliminary examination testimony. Moreover, defense counsel admitted having communicated with Velasquez prior to trial. He could not have been surprised that he would assert his Fifth Amendment rights.

MCLA 768.26; MSA 28.1049 clearly permits testimony of a witness at a preliminary examination to be read at the trial.

The trial judge permitted Velasquez’s testimony at both the preliminary examination and at the hearing to vacate the guilty plea to be read at the trial. We note here defendant took advantage of the opportunity to examine Velasquez at the hearings. The trial judge properly ruled that in asserting his Fifth Amendment privilege, Velasquez had made himself "unavailable” to testify at trial. MCLA 768.26; MSA 28.1049. The propriety of using former testimony of a witness who asserts his Fifth Amendment privilege has been recognized, People v Pickett, 339 Mich 294, 306; 63 NW2d 681 (1954), and also that of a witness who merely refuses to testify. People v Szeles, 18 Mich App 575, 577; 171 NW2d 550 (1969). A witness’s physical unavailability is not required. Nor was it required that the prosecutor grant Velasquez immunity under MCLA 780.701; MSA 28.1287(101). See People v Towlen, 66 Mich App 577, 579-580; 239 NW2d 668 (1976). There was no showing by defendant of prejudice on this issue.

Defendant further contends that the production of two res gestae witnesses was not properly excused by the trial court. It appears from the record that when the arrest of defendant was made, it was while he was in a group of his friends and acquaintances. Some of these wanted to be elsewhere at the time and took off without the police being able to find out who were present or where they could be located. The identity of two of them, William Lile and Rudy Vella, was learned. Efforts made to contact Lile for trial included phone calls within and beyond this state, and contacts with an undercover unit which was believed to have means to locate him. It developed Lile could not be located several months previously in connection with another case of which circumstance defense counsel was aware. The court ruled that the people had used due diligence to locate him and excused his production.

Vella’s name came into the case as someone allegedly present at the arrest of defendant, and defendant demanded he be produced as a res gestae witness. A continuance was granted until the next day by the court to give the prosecutor time to determine whether Vella could be located. The undercover officer then testified as to his efforts which included police department record checks, known addresses, known associates, phone and postal records. This was testified to the court outside the presence of the jury, which testimony included the statement that Vella was not at the point where Velasquez was arrested and that Vella apparently had been picked up in all the confusion by an officer who could not remember Vella’s name.

The trial court, observing that there was a conflict in the testimony as to whether Vella was present at the arrest, ruled that because sufficient reasonable efforts had been made to locate Vella, due diligence had been shown and his production excused.

It is well settled that failure to endorse and produce res gestae witnesses may be excused when the prosecutor makes a showing of diligence in searching for witnesses. People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975). A trial judge’s findings of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown. People v Bell, 74 Mich App 270, 274-275; 253 NW2d 726 (1977). The efforts to locate the witnesses satisfied the requirement of due diligence. People v Blacksmith, 66 Mich App 216, 220-221; 238 NW2d 810 (1975). We find no abuse of discretion in this area by the trial judge and no prejudicial error in those rulings.

Defendant contends there was reversible error committed by the prosecutor in impeaching the res gestae witness, Rodriguez, by the use of a prior conviction as the first question to him even though the jury was instructed to disregard the question.

The people were obligated to call res gestae witnesses to testify, whether their testimony be favorable or unfavorable. They may be impeached the same as though such witnesses had been called by the defendant. MCLA 767.40a; MSA 28.980(1). In this instance, Rodriguez was present at the time of defendant’s arrest and also was in jail with informant Velasquez when the latter stated defendant was not involved in the drug transaction for which he was being prosecuted. He was a res gestae witness and it was obvious to the prosecutor his testimony was going to be favorable to defendant. He was subject to impeachment by the people, and, in the discretion of the court, such may be done by inquiring about prior felony convictions. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). The prosecutor began his examination with a question regarding a prior conviction. This question was objected to before it was answered, the objection was sustained, and the jury instructed to disregard it. It would have been better practice for the prosecutor to present the witness for whatever testimony he was to give before attempting to impeach him. However, we find no prejudicial error in view of the fact the question pertained to the witness — not to the defendant — the witness did not answer and a curative instruction was given. People v Chambers #1, 64 Mich App 311; 236 NW2d 702 (1975).

Another contention of defendant is that the prosecution committed reversible error in asking defendant’s character witness whether she knew of defendant’s possession of marijuana conviction. The question was objected to and the objection sustained. The jury was instructed to disregard the question totally, because the court determined there was no such conviction. It appears from the record that there was no bad faith on the part of the prosecutor but that the law enforcement conviction record was erroneous.

Instead of its being harmful to defendant, it seems clear it would more likely be harmful to the prosecution in view of the trial court’s assertion that no such conviction existed and the instruction to disregard it totally. Accordingly, the directives in People v Stedman, 41 Mich App 393; 200 NW2d 370 (1972), relating to the form of the question and in People v Robinson, 70 Mich App 606; 247 NW2d 308 (1976), relating to prior clearance with the trial judge as to such questioning need not here be considered in view of the prompt action of the trial judge.

We do, however, recommend that the rule in Robinson, supra, be henceforth extended to include general character witnesses and not be limited to those witnesses to defendant’s reputation for truth and veracity, so that in every case involving cross-examination of any character witness as to any alleged misconduct of a defendant, prior clearance must be obtained from the trial judge. Thus, the possibility of prejudicing a jury may be avoided.

Defendant asserts the prosecution improperly argued to the jury it was the jury’s duty to convict defendant. Our examination of the prosecutor’s argument in its entire context persuades us that he in no way suggested the jury should relinquish its fact-finding function to defer to any demand of his. In addition, the trial judge recalled the jury after defense counsel objected to the passages in the prosecutor’s final argument, and instructed them they had no duty to find defendant guilty unless the evidence convinced them of his guilt beyond a reasonable doubt. There was no error.

Defendant argues that the trial judge was in error in instructing the jury on aiding and abetting. We have examined the record and are unable to agree. It was the theory of the defense that Jesse Garcia was the drug dealer, and that informant’s testimony against defendant was the result of his fear of Garcia.

The testimony of Velasquez at both the preliminary examination and the plea revocation hearing was placed before the jury, as was the testimony of the undercover officer who testified as to his direct communications with defendant and the arrangement to buy from defendant. It was reasonable for the jury to believe Garcia was the actual drug dealer or supplier and that defendant had assisted in effecting the sale, which would constitute the necessary concert of action for aiding and abetting. See People v Mann, 395 Mich 472; 236 NW2d 509 (1975). On the basis of all the evidence and the logical and reasonable inference therefrom, we think the instruction in this case was proper.

Defendant’s claim that the informant Velasquez waived his Fifth Amendment privilege when he answered questions relating to defendant’s lack of involvement in the crime is without merit. We are mindful that the record discloses defense counsel agreed with the prosecution that Velasquez would be put on the stand even though defense counsel had earlier communicated with him and that at this trial Velasquez was represented by counsel who advised him to rely on the Fifth Amendment. We do not think that he waived his privilege. But whether he did or not, we think that defendant was not prejudiced by Velasquez’s failure to testify at trial.

Defendant did not, as he contends, have his right to confront and right to secure witnesses in his favor violated because Velasquez’s prior testimony at the preliminary examination and at the guilty plea revocation hearing was read to the jury. Defendant vigorously cross-examined at the preliminary examination and at the guilty plea revocation hearing presented evidence in his behalf. Moreover, the testimony given at trial was favorable to and exculpated defendant, and Velasquez appeared before the jury. We find that defendant was not prejudiced.

Defendant asserts the trial judge should have sua sponte instructed the jury not to draw any inference adverse to defendant from Velasquez’s failure to testify. Inasmuch as defendant did not request the instruction, the issue has been waived and is not properly preserved for appeal. People v Barbeaux, 73 Mich App 327, 329-330; 251 NW2d 307 (1977). We have been cited to no authority that such an instruction must be given. Manifest injustice will not result from any failure to consider the issue. Since Velasquez had given testimony favorable to and exculpating defendant, it is unlikely any inference adverse to defendant would result from his taking the Fifth Amendment. People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977), cited by defendant, is not in point. There Giacalone’s charged accomplice was the person asserting the privilege.

Lastly, defendant claims the trial court should have found entrapment as a matter of law. We disagree. An examination of the record does not disclose any conduct on the part of the police or the informant that would be considered entrapment. There is no evidence the informant in any way coerced or played upon the sympathies of defendant, or that defendant ultimately agreed to do an act which he otherwise would not do. Defendant did not sustain his burden of proof on this issue.

We find no prejudicial error. The defendant had a fair trial. His conviction is affirmed.


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    SHEPHERD v SHEPHERD
    1. Divorce — Children—Presumption of Legitimacy — Statutes.
    It is presumed, by statute and by case law, that any child conceived or born to a married couple prior to the commencement of a suit for divorce is legitimate; this presumption may be rebutted only by clear and convincing evidence (MCLA 552.29; MSA 25.107).
    2. Evidence — Clear and Convincing Evidence — Definitions.
    Clear and convincing evidence is more than a preponderance of evidence; such evidence must be "very convincing”, "of such cogency as to render belief necessary” and "beyond all reasonable doubt”.
    3. Divorce — Children—Presumption of Legitimacy — Evidence— Blood Tests.
    A husband in a divorce action who contests his paternity of a child born to his wife nine months, ten days after the parties separated is entitled to present his best evidence to rebut the presumption of legitimacy; therefore, a trial court erred in denying the husband’s request that he, his wife, and the child be required to submit to blood tests, the results of which would be filed with the court.
    4. Evidence — Paternity—Blood Tests — Bastards—Divorce—Admissibility.
    The results of blood tests disclosing only that an alleged father might have sired the child are irrelevant and inadmissible in determining paternity, but results of properly conducted tests which preclude paternity are conclusive and sufficient to rebut the presumption of legitimacy.

      References for Points in Headnotes

       10 Am Jur 2d, Bastards § 15.
    Presumption of legitimacy of child born after annulment, divorce, or separation. 46 ALR3d 158.

       30 Am Jur 2d, Evidence §§ 1163, 1166-1168.

       10 Am Jur 2d, Bastards § 32.
    24 Am Jur 2d, Divorce and Separation § 878.
    Blood grouping tests. 46 ALR2d 1000.
    Determination of paternity, legitimacy, or legitimation in action for divorce, separation or annulment. 65 ALR2d 1381.

      Appeal from Calhoun, Paul Nicolich, J.
    Submitted February 8, 1978, at Grand Rapids.
    (Docket No. 77-960.)
    Decided February 22, 1978.
    Complaint by David A. Shepherd against Cynthia L. Shepherd for divorce. The defendant counterclaimed for divorce, alleging that the plaintiff was the father of a child born after the couple had separated. Divorce granted, and plaintiff ordered to pay support for the child. Plaintiff appeals.
    Remanded for further proceedings.

      F. Jack Neller, for plaintiff.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   Allen, J.

In a divorce action where paternity of an infant child is raised as an issue, may blood grouping tests of the parents and the child be introduced in evidence in order to rebut the presumption of legitimacy? The trial court denied plaintiff-husband’s petition for such tests and, on February 23, 1977, entered a judgment of divorce ordering plaintiff-husband to pay $30 per week for the child’s support. From that judgment, the husband appeals of right.

The parties were married December 11, 1971, and while still living together, one child, Eric, was born. The parties separated June 15, 1975, and, on July 8, 1975, the husband filed for divorce. Within a few days the wife filed a counterclaim for divorce. On March 26, 1976, 9 months and 10 days following the parties’ separation, a second child, Daniel, was born. The wife then amended her counterclaim for divorce to allege the birth of Daniel, and the husband answered denying paternity of said child. On October 4, 1976, the husband filed a petition denying paternity of Daniel and asking for an order requiring the parties and the child to submit to blood grouping tests, the result of which would be filed with the court. Following a hearing on January 24, 1977, the petition was denied but no transcript of the hearing accompanies this appeal and we are without knowledge as to the precise reasons the trial judge entered an order of denial. However, at the trial for divorce, the wife testified she had sexual relations with her husband as recently as the date of separation, June 15, 1975. Though this fact was denied by the husband, the trial court at the conclusion of said trial stated:

"Now, as regards the child Daniel, the evidence indicates that the parties ceased cohabitation on June 16, 1975, that the child Daniel was born March 26, 1976, a period of nine months and ten days from the date of separation. Up to that time, there was access, although Mr. Shepherd says he did not have sexual relations with his wife. His wife testified that she had sexual relations with him as late as June 15th. There is further testimony that the parties had not engaged in sexual relations from the 16th of June, 1975. The presumption, and that is strong, that the child born during the period that the parties are married, that it is the child of the marriage. The testimony needed to rebut such a presumption has to be great. If one takes a practical look, although there is not enough testimony to establish just exactly how many months it takes for a period of gestation to the time of the childbirth, it would be unreasonable to think that it couldn’t be nine months and ten days. It is not a fixed period or fixed amount of time that it cannot deviate. So as far as reviewing the evidence, the evidence in the Court’s mind does not rebut that presumption that the child is Mr. Shepherd’s and so, therefore, I do find that the child is a child of the marriage, and I award custody to Mrs. Shepherd of the child Daniel Shepherd.”

In 1954, Michigan enacted into law the Uniform Act on Blood Tests. 1954 PA 128; MCLA 692.751 et seq.; MSA 25.471 et seq. That act provided that "In a civil action, in which paternity is a relevant fact, the court, upon request made by or on behalf of the alleged father whose blood is involved, shall order the mother’s, child’s and alleged father’s blood to be tested” (emphasis added). One year later, for reasons which we are unable to determine, the statute was amended by 1955 PA 155 to read: "In any bastardy case, the court, upon application made by or on behalf of the alleged father whose blood is involved, shall order that the mother, child and alleged father submit to 1 or more blood tests” (emphasis added). In 1956, the Legislature enacted The Paternity Act, a comprehensive statute governing proceedings to compel support of children born out of wedlock and prescribing the procedure for determination of such liability. MCLA 722.711 et seq.; MSA 25.491 et seq. This statute dropped all reference to "bastardy cases” but § 6 thereof incorporated in language substantially the same as appeared in 1955 PA 155 the provisions, quoted above, pertaining to mandatory blood tests to determine paternity. However, such mandatory tests were limited to proceedings under the act, viz.: — paternity proceedings rather than divorce proceedings.

Because the instant case is not a paternity proceeding the compulsory blood test mandates of neither the 1955 statute nor the present Paternity Act apply. The absence of any statute covering the action before him is probably the reason the trial judge declined to grant plaintiffs petition. Be this as it may, plaintiff contends that the trial court erred in not granting his petition. The issue raised is one of first impression in this state. For the reasons set forth below, we agree with plaintiff.

By statute and case law, it is presumed that any child conceived or born to a married couple prior to the commencement of a suit for divorce is legitimate. MCLA 552.29; MSA 25.107. Maxwell v Maxwell, 15 Mich App 607, 616; 167 NW2d 114 (1969). The presumption, "one of the strongest presumptions known to the law” may be rebutted by clear and convincing evidence. Maxwell, supra, 617, People v Case, 171 Mich 282, 284; 137 NW 55 (1912). As is eloquently pointed out by Justice Coleman in her concurring opinion in Serafin v Serafin, 401 Mich 629, 637; 258 NW2d 461 (1977), "clear and convincing” evidence means something more than a preponderance of evidence. Such evidence of rebuttal must be "very convincing”, "of such cogency as to render belief necessary” and "beyond all reasonable doubt”. 401 Mich at 640. This being so, Justice Coleman concluded her opinion by saying:

"Two other minor aspects of this case deserve some attention. First, the trial judge refused to order a blood test for the purpose of determining whether Mr. Serafín could be the father of the child. Such an order should be granted on remand if Mrs. Serafín continues to allege that Mr. Serafín is the father and if such an order is requested. ” (Emphasis supplied.) Id. at 640.

While a majority of the Court did not join in that portion of Justice Coleman’s opinion pertaining to blood tests, the majority did rule that in rebutting the presumption of legitimacy the husband was entitled to present his best evidence:

"Neither is the peace of the general society fostered by continued adherence to Lord Mansfield’s rule. Rather, we are convinced, it is best fostered by lifting the veil of incompetency imposed upon a husband and wife by the rule. In our view the public peace and respect for the law are enhanced, not by arbitrarily assigning the duty of support to a man who is not the father of the child, but by allowing him to contest paternity by his best evidence. ” (Emphasis supplied.) Id. at 635.

In our opinion, Serafín which, like the case before us, was a divorce action requires reversal of the trial court’s denial of plaintiffs petition for blood group tests. Deprived of such tests, plaintiff is totally unable to present his potential best evidence required to overcome the presumption of legitimacy.

We have already noted that § 6 of the Paternity Act of 1956 is virtually identical with § 1 of 1955 PA 155 relating to bastardy proceedings. In People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956), the trial court had denied defendant’s motion for a blood test in accordance with the statute. On appeal, the Supreme Court interpreted the statute as mandating tests if requests for such tests were made by the putative father. We acknowledge that the so-called bastardy proceeding is not identical with a divorce action but believe, by analogy, there remains some precedential value for the purposes of this case in the Stoeckl ruling.

Finally, we should note that under the holdings in Michigan and a majority of jurisdictions the results of blood tests, disclosing only that the alleged father might have sired the child, are irrelevant and inadmissible. But properly conducted tests which preclude paternity are conclusive and sufficient to rebut the presumption of legitimacy. People v Nichols, 341 Mich 311; 67 NW2d 230 (1954), Kusior v Silver, 54 Cal 2d 603; 7 Cal Rptr 129; 354 P2d 657 (1960), Commonwealth v Stappen, 336 Mass 174; 143 NE2d 221 (1957), Anno: 46 ALR3d 158.

In our opinion the blood tests requested in the instant case should have been ordered. Accordingly, the judgment of divorce is remanded to the trial court for conducting the requisite tests. Should such tests disclose nonpaternity, then that portion of the judgment pertaining to support for the minor child, Daniel, is reversed. Should such test results inconclusively disclose paternity, the judgment of divorce is affirmed.

Remanded, in accordance with this opinion. No costs.

       "Sec. 6. (a) In any proceeding under this act before trial, the court, upon application made by or on behalf of the alleged father, shall order that the mother, child and alleged father submit to 1 or more blood tests to determine whether or not the defendant can be excluded as the father of the child.
      "(d) The result of the tests shall be receivable in evidence in the trial of the case but only in cases where definite exclusion is established.” MCLA 722.716; MSA 25.491.

       Even though The Paternity Act, for practical purposes, replaced 1955 PA 155, that statute remained on the books until formally repealed by Chapter 692 of the Judicature Act of 1961. MCLA 692.15; MSA 27.1235.

       Justice Williams joined in Justice Coleman’s concurring opinion.

       The "potential best evidence” of nonpaternity is blood test results establishing nonpaternity. Such tests are irrelevant and inadmissible as proving paternity. See People v Nichols, 341 Mich 311; 67 NW2d 230 (1954).

       In Stoeckl, supra, the Court divided 4-3. However, the minority agreed that the statute was mandatory except for the fact that the request for such tests came on the day of trial. In the opinion of the minority this was too late. Unlike Stoeckl, the request for group tests in the present case was made well in advance of trial.


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

text:
    CLAVENNA v HOLSEY
    1. Courts — Jurisdiction—Consequences of Injury — Limited Personal Jurisdiction — Nonresidents—Statutes.
    The consequences of a plaintiffs injury, namely her medical and surgical treatment in Michigan, the suffering in Michigan and her husband’s loss of consortium in Michigan are not sufficient to give a Michigan court limited personal jurisdiction over a Canadian resident in an action for damages for injuries sustained in a boating accident in Canadian waters under the statute regarding limited jurisdiction over individuals (MCLA 600.705[2]; MSA 27A.705[2]).
    2. Courts — Jurisdiction-—Long-Arm Jurisdiction — Non-Residents —Due Process — Minimal Contacts — -Forum State — Constitutional Law.
    A state’s exercise of long-arm jurisdiction over a non-resident is limited by the Due Process clause of the United States Constitution; due process requires that a defendant have certain minimal contacts with the forum state before jurisdiction may be acquired (US Const, Am XIV).
    3. Courts — Jurisdiction—Limited Jurisdiction — Consequences of Injury — Event in Michigan — Torts—Personal Injury Cases —Statutes.
    The statute regarding limited jurisdiction over an individual that speaks of causing consequences to occur within the state applies to situations in which an act or conduct of the defendant outside of Michigan leads to an event in Michigan which gives rise to a tort claim; in the context of personal injury cases that event occurs when the injury results (MCLA 600.705[2]; MSA 27A.705[2]).
    References for Points in Headnotes

       20 Am Jur 2d, Courts §§ 123, 143, 146.
    Tort: construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on the commission of a tort within the state. 24 ALR3d 532.

       73 Am Jur 2d, Statutes §§ 356, 357.

      Appeal from Macomb, Frank E. Jeannette, J.
    Submitted December 20, 1977, at Detroit.
    (Docket No. 77-1262.)
    Decided February 23, 1978.
    Leave to appeal applied for.
    Complaint by Diane Clavenna and Peter Clavenna against Hewitt E. Holsey and Donald J. Purdie for damages for injuries sustained by Diane Clavenna in a boating accident. Accelerated judgment of dismissal as to defendant Holsey only. Plaintiffs appeal.
    Affirmed.

      Buell A. Doelle, P. C., for plaintiffs.

      Foster, Meadows & Ballard (by Robert N. Dunn), for defendant Hewitt E. Holsey.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

Plaintiffs appeal from an order of accelerated judgment in favor of defendant Holsey. We affirm.

On September 7, 1974, plaintiffs, Michigan residents, were passengers on a 38-foot cruiser owned and operated by defendant Purdie, also a Michigan resident, in Canadian waters of the Detroit River between Belle Isle and Peche Island. At about 10:40 p.m., the Purdie boat collided with a 36-foot cruiser owned and operated by defendant Holsey, a citizen and resident of Ontario, Canada. When the operators of the two boats turned sharply in opposite directions in an attempt to avoid collision, plaintiff-wife grabbed the port (left) handrail of the Purdie boat, and segments of her middle, ring, and small fingers were injured to near amputation when the two boats struck each other at that same point.

Following the collision; plaintiff-wife received emergency medical service from the Detroit Police Department on Belle Isle. She also underwent surgery at St. John Hospital in Detroit, Michigan, on September 8, 1974, returning to her home in St. Clair Shores on September 10, 1974. She was subsequently treated by her Michigan doctor and underwent two more surgical procedures in May and November, 1975, at the Grace Main Hospital in Detroit.

Plaintiffs filed a tort action in Macomb County Circuit Court against both defendants, alleging personal jurisdiction over defendant Holsey under MCLA 600.705(2); MSA 27A.705(2). Defendant Holsey was personally served in Canada and entered an appearance challenging the jurisdiction of the court, contending he was a Canadian resident and that the collision occurred in Canadian waters. Defendant Holsey’s initial motion for accelerated judgment was denied since the trial court found there was a question of fact as to the location of the accident.

Defendant Holsey answered the complaint, still challenging jurisdiction, and pretrial discovery followed. In their depositions both defendants testified the accident occurred in Canadian waters; plaintiffs testified they had no independent knowledge of the accident site and on appeal concede that the accident occurred in Canadian waters. The trial judge granted defendant Holsey’s renewed motion for accelerated judgment and plaintiff appeals.

The issue is whether the so-called "consequences” of plaintiff-wife’s injury — medical and surgical treatment in Michigan, her suffering in Michigan and her husband’s loss of consortium in Michigan — are sufficient to give a Michigan court limited personal jurisdiction over a Canadian resident based on MCLA 600.705(2); MSA 27A.705(2)? That statutory section reads:

"The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
"(2) The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.”

Plaintiffs argue that although the injury occurred in Canadian waters, the "consequences” of that injury occurred in Michigan and therefore the statutory requirements have been met. We disagree.

While we certainly recognize the necessity of providing a convenient forum for Michigan residents, the reach of our long-arm statute is not unlimited. The scope of a state’s exercise of long-arm jurisdiction over a nonresident is limited by the Due Process clause of the Fourteenth Amendment to the United States Constitution. Due process requires that a defendant have certain minimal contacts with the forum state. International Shoe Co v State of Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945), Woods v Edgewater Amusement Park, 381 Mich 559, 564-565; 165 NW2d 12 (1969), Cole v Doe, 77 Mich App 138, 141-142; 258 NW2d 165 (1977), Kiefer v May, 46 Mich App 566, 571; 208 NW2d 539 (1973).

Initially we note that the instant action is based on a tort and thus distinguishable from cases finding jurisdiction based on MCLA 600.705(1); MSA 27A.705(1) — the "transaction of any business” in Michigan. In the business contacts setting the jurisdictional inquiry is somewhat different since a nonresident transacting business in the state usually can be said to be purposefully availing himself or herself of the privilege of conducting business in Michigan. Fundamental fairness requires one who chooses to transact business in the state to be subject to the restrictions as well as the protections of state law. When a nonresident chooses not to maintain any contacts with the forum state and jurisdiction is alleged solely on the basis of a tort which occurred outside of the state, the jurisdictional inquiry narrows.

We turn to three recent Federal court decisions analyzing the reach of Michigan’s long-arm jurisdiction based on in-state "consequences” resulting from a tortious incident occurring outside of the state. Price v Shessel, 415 F Supp 306 (ED Mich, 1976), Storie v Beech Aircraft Corp, 417 F Supp 141 (ED Mich, 1976), Amburn v Harold Forster Industries, Ltd, 423 F Supp 1302 (ED Mich, 1976). All three opinions were authored by Judge Cornelia Kennedy and, taken together, thoroughly analyze what types of "consequences” are sufficient to confer jurisdiction on Michigan courts under MCLA 600.705(2); MSA 27A.705(2).

Factually Price, supra, is most analogous to the instant case. Plaintiff Price brought a negligence action against a Georgia hospital and an individual doctor who was a resident of Georgia. As in the instant case, plaintiff Price argued the "consequences” of the medical treatment in Georgia— suffering in Michigan and subsequent medical treatment in Michigan — conferred jurisdiction pursuant to MCLA 600.705(2); MSA 27A.705(2). Judge Kennedy rejected plaintiff’s argument and transferred the case to a Federal district court in Georgia.

In Storie, supra, plaintiff’s action against four foreign corporations stemmed from an airplane crash that occurred in Ohio. The corporations moved to dismiss based on lack of personal jurisdiction. The trial court granted the motion, finding no limited personal jurisdiction based on MCLA 600.715(2); MSA 27A.715(2) (the corporation counterpart of MCLA 600.705(2); MSA 27A.705(2)). The only foundation for plaintiff’s assertion of jurisdiction over defendants was the fact that the decedent and his personal representative (plaintiff) were Michigan residents and the estate was being administered in Michigan. In rejecting plaintiff’s argument, the Court stated:

"The Court concludes that when the Michigan statute speaks of causing consequences to occur within the state, it applies to situations in which an act or conduct of the defendant outside of Michigan leads to an event in Michigan which gives rise to a tort claim. In the context of personal injury cases, that event occurs when the injury results, and in this case that consequence occurred in Ohio at the time of the airplane crash.” Storie, supra, at 145.

We adopt the above concise analysis by Judge Kennedy. In the instant case the injury and consequences occurred when the boats collided in Canadian waters.

The final case, Amburn, supra, is factually inapplicable but highlights the weakness of a jurisdictional claim based on the close contact of plaintiffs, rather than the defendant, with the forum state.

"The interpretation which plaintiffs seek to place on this statute would subject anyone who has caused any resident of Michigan damage in any way or anywhere to be sued in Michigan. It would equate 'consequences’ with 'damages.’ Any Michigan citizen injured anywhere could sue in Michigan. It would substitute the plaintiffs’ close contacts to the forum state for the due process requirements of the defendants’ contacts. It would permit an injured plaintiff to forum shop — to move to Michigan, or any forum where the case law was more favorable to the plaintiffs’ position, in order to bring suit there.” Amburn, supra, at 1309.

Again we find Judge Kennedy’s reasoning persuasive.

Defendant Holsey is not subject to Michigan’s long-arm jurisdiction based on MCLA 600.705(2); MSA 27A.705(2) and the trial court’s grant of accelerated judgment is affirmed.


author: J. H. Gillis, J. M. F. Cavanagh, P. J.

text:
    PEOPLE v 3474 FAIRVIEW
    Opinion of the Court
    1. Criminal Law — Searches and Seizures — Recorder’s Court — Title Determinations — Jurisdiction.
    The Recorder’s Court of Detroit does not have jurisdiction to determine title to monies seized under a search warrant issued by that court where no arrests were made as a result of the warrant or seizure, no criminal proceedings are pending therefrom, and the monies were not taken from the presence of the person claiming title to them nor from premises registered in his name.
    Dissent by M. F. Cavanagh, P. J.
    2. Courts — Jurisdiction—Recorder’s Court — Searches and Seizures — Title Determinations.

      Circuit court has primary jurisdiction to try title questions, but a recorder’s court has jurisdiction to order the return of funds seized under a search warrant which it has issued and from which no arrests ensued where no government agency claims any interest in the funds and no other individual asserts a contrary right to possession.

    Appeal from Recorder’s Court of Detroit, Samuel C. Gardner, J.
    Submitted December 8, 1977, at Detroit.
    (Docket No. 77-1282.)
    Decided February 23, 1978.
    Leave to appeal denied, 402 Mich 945.
    Motion by Zack Garrett in Recorder’s Court for the City of Detroit seeking an order requiring the City of Detroit to return personal property seized under a search warrant. An order was entered for return of the property. The City of Detroit appeals by leave granted.

      Reference for Points in Headnotes
    [1, 2] 68 Am Jur 2d, Searches and Seizures §§ 118, 119.

      Reversed.

      Roger Craig, Corporation Counsel, Tom Gallagher, Assistant Corporation Counsel, and Raymond L. Feul, Legal Advisor, for the City of Detroit.

      Miller, Amberg & Cristini, P. C, for claimant Zack Garrett on appeal.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

On August 6, 1975, a Recorder’s Court Judge for the City of Detroit issued a search warrant for a dwelling house located at 3474 Fairview in the City of Detroit. The warrant authorized the seizure of various drugs, narcotics paraphernalia, guns, and monies used and earned in narcotics trafficking.

Pursuant to the warrant, a narcotics raid was conducted on the premises during which police seized monies in the amount of $17,178.98, assorted drugs, and other personal property.

The officers also seized various documents that indicated that the premises was the residence of three individuals, Moses Garrett, Charles Garrett, and Ronald Garrett.

No arrests were made during the raid or subsequent thereto.

Subsequent to the seizure of the money, the State of Michigan issued a jeopardy assessment against one of the lessees, Ronald Garrett. The Detroit Police Department paid over $15,297.77 to the State of Michigan to satisfy the assessment, and paid over the remaining $1,881.20 to the treasurer of the City of Detroit.

On April 15, 1977, Zack Garrett, through his attorney, filed a motion in recorder’s court for the return of the seized monies. The motion alleged that Zack Garrett was the lessee of 3474 Fairview during the raid which took place in 1975, and that the monies seized were his.

Appellant, City of Detroit, answered this motion by claiming a question of title as to the monies was -presented and that recorder’s court lacked jurisdiction to rule on such a motion. The court disagreed and ordered the appellant to pay the monies over to Zack Garrett. The City of Detroit then appealed to this Court for emergency application for leave to appeal and moved for a stay of proceedings. On April 19, 1977, this Court ordered that the application for emergency leave to appeal be held in abeyance and granted the motion for immediate consideration and stay of proceedings. On May 25, 1977, this Court granted the application for leave to appeal.

The sole issue raised on appeal is whether or not recorder’s court possesses the jurisdiction to order the return of the monies seized during the raid to Zack Garrett.

The jurisdiction of the Detroit Recorder’s Court is set forth in MCLA 726.11; MSA 27.3561.

’’The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into compíete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this state, within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, that this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.” (Emphasis supplied.)

This Court must first determine whether or not the instant matter involves a criminal prosecution or proceeding which is necessary for recorder’s court jurisdiction.

In People v Ewald, 302 Mich 31; 4 NW2d 456 (1942), the Supreme Court of this state said:

"It is our conclusion that the exclusiveness of jurisdiction of the recorder’s court does not extend to the initiatory step in the institution of proceedings, but merely to matters subsequent thereto connected with bringing an offender to trial * * * .” 302 Mich at 40.

This Court has interpreted the Ewald case in People v Moss, 68 Mich App 614, 617; 244 NW2d 1 (1976):

"Nor do we find that the 'original and exclusive’ jurisdiction of recorder’s Court, MCLA 726.11; MSA 27.3561, applies to more than 'prosecutions and proceedings’, People v Ewald, 302 Mich 31; 4 NW2d 456 (1942). That exclusiveness does not apply to proceedings for the discovery of crime, Ewald, supra, and search warrants are for the discovery of crime.” (Emphasis supplied.)

In the instant matter, no arrests were made, and no criminal proceedings are pending. The issuance of a search warrant was the only action taken by the court. Under these circumstances, the controversy would seem to be outside the jurisdiction of recorder’s court.

However, MCLA 726.11; MSA 27.3561 has been construed to grant recorder’s court the authority to determine the right to possession of money seized by law enforcement officials.

"We do hold that in criminal cases similar to the one before us in this appeal, it is the ancillary right and duty of the recorder’s court to determine the right to possession of money or goods illegally seized by law enforcing officials.” People v Rosa, 382 Mich 163, 168; 169 NW2d 297 (1969).

The facts in the instant matter are clearly distinguishable from those presented in the Rosa case, supra.

In Rosa, supra, an individual was seeking the return of monies seized from his hotel room. The individual was arrested and forcibly brought before recorder’s court. The money was seized in his presence and from a room that was registered to him. Hence, the only issue presented to the court was who had the paramount right to possession of the monies, the individual or the state.

In the instant matter, Zack Garrett was not forcibly brought before the court. On the contrary, Mr. Garrett has filed a motion in recorder’s court requesting the court to order the City of Detroit to pay over the seized monies to him.

Unlike Rosa, the monies seized in the case at bar were not taken in Mr. Garrett’s presence nor from premises registered in his name. Therefore, Mr. Garrett’s motion raises two questions for consideration: 1) who has the paramount right to possession of the monies, Mr. Garrett or the city; and 2) whether Mr. Garrett was the owner of the monies at the time of their seizure.

The second question raises an issue outside the scope of recorder’s court jurisdiction as evidenced by Rosa, supra.

"We are not considering an appeal involving an action that was started by defendant-appellee in the recorder’s court to try question of title, but a case where defendant was forcibly brought before the recorder’s court, where the issue presented is the superior right to possession as between the seizing authority and the one from whom the property was seized.

"We do not interpret the Court of Appeals’ decision (as does plaintiff) as an authorization to the recorder’s court to exercise general jurisdiction determining questions of title, and specifically hold that the statute does not grant such powers.” 382 Mich at 167, 168.

Accordingly, we rule that the facts presented in the instant matter would require recorder’s court to decide a question of title which is outside the scope of its jurisdiction. The proper forum would be in a court having civil jurisdiction.

Reversed. No costs, a public question being involved.

D. C. Riley, J., concurred.

M. F. Cavanagh, P. J.

(dissenting). I must dissent from the majority’s conclusion that MCLA 726.11; MSA 27.3561, does not allow recorder’s court to exercise jurisdiction in the instant case.

My colleagues first accept People v Ewald, 302 Mich 31; 4 NW2d 456 (1942), as authority for the proposition that the exclusive jurisdiction of recorder’s court does not extend to the issuance of a search warrant, a proceeding for the discovery of crime. There is support for this interpretation, if the statements in Ewald, supra, are read without reference to the particular circumstances of that case. As I stated, obviously unpersuasively, in my dissent in People v Moss, 68 Mich App 614, 618; 244 NW2d 1 (1976), lv den 399 Mich 836 (1977):

"The statement in People v Ewald, 302 Mich 31; 4 NW2d 456 (1942), that proceedings for the discovery of crime are not prosecutions and proceedings for crimes within the meaning of the recorder’s court jurisdiction statute does not require a different result. Ewald involved the authority of a one-man Wayne County grand jury, conducting an investigation into crimes in Detroit, to issue an arrest warrant for a crime committed within the city. The recorder’s court jurisdiction statute contains a specific proviso preserving the authority of the grand jury to inquire into and make accusation of crimes committed within the city. The instant case does not involve the authority of a grand jury, one-man or otherwise.”

The issuance, execution and return of the search warrant here was merely the first step of what presumably was anticipated to result in an arrest and criminal prosecution. It does not seem logical to me to say that because no arrest ensued after the warrant was returned to recorder’s court, that court lost any jurisdiction it might otherwise possess to dispose of the seized funds.

I consider People v Rosa, 382 Mich 163; 169 NW2d 297 (1969), to be ample authority for the trial judge’s actions here. That this is so is made clearer by a reading of this Court’s rationale in People v Rosa, 11 Mich App 157; 160 NW2d 747 (1968).

"Under the terms of this jurisdiction delimiting statute, in order for the recorder’s court to have authority to return the cash, it must first be decided that a circuit court also would have the authority to make disposition in a criminal case of cash obtained under identical circumstances.
"In People v Williams (1961), 363 Mich 281, seized personal property and cash were claimed by third parties after the information in the case had been quashed. The Supreme Court, in a per curiam opinion, held the remedy, if any, in the Williams Case was 'on the civil side of the court.’ That holding, however, was largely based on a 'lack of proper party in interest, neither affiant nor petitioner being party to criminal action in which petition is filed.’ In cases brought by the accused parties for the return of illegally seized property the return has been ordered. People v Krol (1943), 304 Mich 623, People v Marxhausen (1919), 204 Mich 599 (3 ALR 1505); also see 20 MLP, Searches and Seizures, § 1, p 228 et seq. It is apparent that such return can be ordered by circuit courts in such cases, therefore, under the statutes, recorder’s court can also order such returns.
"The question is now raised as to what return procedures would be compatible with the 4th Amendment of the Constitution of the United States, which was made fully applicable to the States by Mapp v Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933). The people argue that recorder’s court is not the appropriate tribunal in which to try complicated questions of title. A similar illegal seizure of cash was faced and decided under the principles of the 4th Amendment in Berkowitz v United States (CA 1, 1965), 340 F2d 168 (8 ALR3d 463). It was stated in that opinion that the basic concept of our American system incorporated in the 4th Amendment is that men have the right to be left in possession of their property unless valid authority for disturbing that possession can be shown to be based upon law. No complicated questions of title will be faced, as all that need be decided concerning seized property is the superior right of possession as between the seizing authority and the one from whom the property was seized. As pointed out in Berkowitz, this does not mean that an accused is entitled to receive possession of contraband of which the mere possession is per se contrary to public policy. In the case of the seizure of noncontraband property, public policy against the unconstitutional seizure of property is so strong as not to allow undue vexation or delay in recovering property wrongfully seized.”

The majority’s attempt to distinguish Rosa, supra, cannot withstand analysis. They urge that the motion below raised two questions for consideration: (1) who has the paramount right to possession of the monies, Mr. Garrett or the city; and (2) was Mr. Garrett the owner of the monies at the time of its seizure? Each question relates to the other; however, neither is really determinative, for the reason, unobserved by my colleagues, that the city in oral argument admitted it has no valid claim whatever to the monies nor has it any knowledge of anybody other than the petitioner who lays claim to them. It is also worthy of note that in Rosa, as here, there were no criminal proceedings pending. The charges in Rosa had been dismissed well before the motion was made for return of the monies.

In sum, the majority seems to strive for an unduly restrictive interpretation of recorder’s court jurisdiction for no compelling reason. Why should this petitioner be forced at his expense to commence a civil action and seek relief in another forum? I agree, and I find nothing in Rosa to dispute, that circuit court has primary jurisdiction to try title questions, but it seems unnecessary to require petitioner to invoke that jurisdiction where, as here, no government agency claims any interest in the funds and no other individual asserts a contrary right to possession. I would affirm.

       This action is for the $1,881.20 retained by the City of Detroit.

       At the oral argument in this cause, counsel for the city, in response to the Court’s inquiry, stated it to be his position that if, in Rosa, two years had lapsed from dismissal of the charges to the time of the motion, recorder’s court would still have jurisdiction to return the funds. However, if, in this case, petitioner had brought his motion simultaneously with the return of the search warrant, recorder’s court could not exercise jurisdiction. It is this inconsistency which troubles me.


author: J. H. Gillis; J.

text:
    TROMBETTA v DETROIT, TOLEDO & IRONTON RAILROAD COMPANY
    1. Administrative Law — Exclusivity Rule — Employers and Employees — Railway Labor Act — Administrative Remedies — Judicial Remedies — Collective Bargaining Agreements— United States Code.
    The exclusivity rule expounded by the United States Supreme Court which provides that employees under the Railway Labor Act are bound to pursue administrative remedies under the act to the exclusion of judicial avenues of relief does not apply where an employee is asserting rights outside of a collective bargaining agreement (45 USC 151 et seq.).

      2. Contracts — Employment Contracts — Indefinite Periods — Exceptions — Public Policy.
    Contracts of employment for indefinite periods of time are terminable at the will of either party; an exception is made to this general rule if the act of an employer in discharging an employee violates the public policy of this state.
    3. Judgment — Summary Judgment — Appeal and Error — Employers and Employees — Wrongful Discharge — Violations of Law — Public Policy — Statutes—Court Rules.
    A trial court erroneously granted defendants’ motion for summary judgment based on the ground that the plaintiff had failed to state a claim upon which relief could be granted where the plaintiff had stated a claim upon which relief could be granted when he claimed that defendants discharged him from their employ because he refused to manipulate and adjust pollution control reports to be filed with the state pursuant to statute since such manipulation would clearly violate the law of this state whose public policy does not condone such attempts to violate duly enacted laws (MCLA 323.1 et seq.; MSA 3.521 et seq., GCR 1963, 117.2[1]).

      References for Points in Headnotes

       48 Am Jur 2d, Labor and Labor Relations §§ 425, 1157, 1158, 1295, 1338.

       48 Am Jur 2d, Labor and Labor Relations § 1140.

       73 Am Jur 2d, Summary Judgment §§ 23-25.

       73 Am Jur 2d, Summary Judgment §§ 2, 16, 20, 22, 23.

      4. Judgment — Summary Judgment — Appeal and Error — Issues of Material Fact — Court Rules.
    A trial court did not err in granting defendants’ motion for summary judgment where the judge found, after considering the entire record and viewing the plaintiffs case in its most favorable light, that the parties had failed to present a genuine issue of material fact (GCR 1963, 117.3).
    5. Judgment — Summary Judgment — Affidavits—Counter-Affidavits — Court Rules.
    It is not mandatory that a plaintiff file counter-affidavits in opposition to a defendant’s motion for summary judgment claiming that the plaintiff has failed to present a genuine issue of material fact; however, if affidavits submitted by defendant in support of the motion for summary judgment stand on the record uncontroverted by any opposing affidavits, depositions, or exhibits, then the allegations in the plaintiffs unsworn pleadings should not deprive the defendant of his right to summary judgment (GCR 1963, 117.3).
    Appeal from Wayne, John R. Kirwan, J.
    Submitted December 6, 1977, at Detroit.
    (Docket No. 77-1335.)
    Decided February 23, 1978.
    Leave to appeal applied for.
    Complaint by Frank Trombetta against the Detroit, Toledo & Ironton Railroad Company and C. P. Turner seeking damages for wrongful discharge from employment. Summary judgment for defendants. Plaintiff moved the trial court for a rehearing. Accelerated judgment for defendants. Plaintiff appeals.
    Affirmed.

      Peter R. Barbara & Associates, P. C. (by Phil Bozzo), for plaintiff.

      Bodman, Longley, Bogle & Dahling (by Joseph A. Sullivan and James J. Walsh), for Detroit, Toledo & Ironton Railroad Company.

      John J. Morad, for defendant C. P. Turner.

      Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis; J.

Plaintiff commenced this action on April 13, 1976, against defendants, Detroit, Toledo & Ironton Railroad Co. and C. P. Turner, alleging that defendants had wrongfully discharged him from their employ. Plaintiff did not assert rights arising under any written contract but maintained that his discharge violated the public policy of this state in that he was terminated after refusing to alter pollution control reports. These reports were filed with the state to insure that defendant company was in conformity with the state pollution control standards.

On August 20, 1976, defendants filed a motion for summary judgment alleging that plaintiff had (1) failed to state a claim upon which relief could be granted under GCR 1963, 117.2(1), and (2) failed to present a genuine issue of material fact for litigation under GCR 1963, 117.2(3).

Affidavits were attached to the motion stating that plaintiff lost his position due to insubordination, and in reality had only been demoted. Plaintiff responded to defendants’ motion with a brief in support of his position but failed to attach any affidavits, depositions or documentary evidence to contradict the exculpatory statements contained in the affidavits attached to defendants’ motion.

The trial court granted defendants’ motion for summary judgment on both grounds after a hearing on October 4, 1976.

Approximately one month later, plaintiff moved the trial court for a rehearing in light of a recent decision handed down by this Court, Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976).

Plaintiff maintained that the Sventko case, supra, recognized a cause of action for the wrongful discharge of an individual employed under a terminable at will employment contract. Plaintiff also contended that the trial court erred in granting defendants’ motion for summary judgment on the grounds that plaintiff had failed to file counter-affidavits.

Defendants filed a brief in opposition to plaintiff’s motion and also submitted a motion for accelerated judgment under GCR 1963, 116.1(2) on the basis that plaintiff had failed to exhaust his administrative remedies under the Railway Labor Act, 45 USC 151 et seq., and therefore the trial court lacked jurisdiction to entertain the suit.

The trial court reaffirmed its earlier findings that the summary judgment was properly granted but held defendants’ motion for accelerated judgment in abeyance until both parties filed briefs in respect to this issue.

After briefs were filed, the trial court granted defendants’ motion for accelerated judgment stating that plaintiff, as an employee of Detroit, Toledo & Ironton Railroad Co., was bound to pursue his exclusive administrative remedies under the Railway Labor Act rather than seeking judicial relief.

Plaintiff appeals as of right from both the accelerated and summary judgments.

Defendants’ motion to limit issues on appeal was denied by this Court.

Plaintiff first contends that the trial court erred in granting defendants’ motion for accelerated judgment.

The trial court concluded:

"Preliminarily it can be said that if it is demonstrated that plaintiff is an employee covered by the act involved in a dispute within the ambit of the act he is constrained to first pursue and exhaust the administrative remedies prescribed by the statute, former stare decisis to the contrary notwithstanding, Moore v Illinois Central R Co, 312 US 630; 61 S Ct 754; 85 L Ed 1089 (1941), for Moore and its progeny were expressly overruled, Andrews v Louisville & Nashville R Co, 406 US 320, 326; 92 S Ct 1562; 32 L Ed 2d 95 (1972). The Andrews Court held that provision for arbitration of a discharge grievance is not a matter of voluntary agreement under the Railway Labor Act, and that the provisions of the act are not merely optional, to be availed of as the employee chooses, but rather are compulsory, and failing to adhere to the dictates of the act precludes the claimant from seeking relief in a judicial forum.”

The trial court ruled that the Andrews case, supra, stood for the proposition that every employee under the Railway Labor Act was bound to pursue his administrative remedies under the act to the exclusion of his judicial avenues of relief. Plaintiff disagreed and argued that the exclusivity rule of Andrews, supra, did not apply to all employees, but only to those who had rights under a collective bargaining agreement.

The language of Andrews supports plaintiffs contention. The numerous cases cited by defendants also support plaintiffs interpretation of Andrews. A review of these cases reveals that in each of them an employee was asserting rights under a collective bargaining agreement when he was denied judicial relief for failure to pursue his administrative remedies under the Railway Labor Act.

Where an employee is asserting rights outside of a collective bargaining agreement, the Andrews exclusivity rule does not apply.

"The parties appear to agree that this claim [discharge wrongful because based on plaintiffs union activity] which rests upon a charge that Delta violated the statute, 45 USC § 152, is not committed to the exclusive jurisdiction of the adjustment board, but is within the jurisdiction of the district court [Federal question jurisdiction]. See Brotherhood of Railway Trainmen v Howard, 343 US 768; 72 S Ct 1022; 96 L Ed 1283 (1952); Brotherhood of Railway Trainmen v Smith, 251 F2d 282 (CA 6, 1958). We do not understand that Andrews * * * holds otherwise. It is clear that the dispute in Andrews stemmed 'from differing interpretations of the collective bargaining agreement,’ whereas the claim here involved is that the Act was violated.” Conrad v Delta Airlines, Inc, 494 F2d 914, 918 (CA 7, 1974).

Applying a proper interpretation of Andrews to the instant matter reveals that the trial court erred in finding that, as a matter of law, any employee covered by the Railway Labor Act is bound to pursue his exclusive administrative remedies under the act. Plaintiff must be a union employee asserting collective bargaining rights in order to be bound by the Andrews exclusivity rule.

These facts were not resolved by the trial court due to its improper interpretation of Andrews, supra. There is some evidence on the record that plaintiff is not a union member, and that he does not possess collective bargaining contract rights.

Accordingly, we conclude that the trial court erred in granting defendants’ motion for accelerated judgment under GCR 1963, 116.1(2).

Plaintiff next contends that the trial court erred in granting defendants’ motion for summary judgment by concluding that plaintiff (1) had failed to state a claim upon which relief could be granted, and (2) had failed to present a genuine issue of material fact for litigation.

The trial court concluded that:

"The general rule of law is that contracts of employment for indefinite periods of time are terminable at the will of either party. It is true that the appellate courts of Michigan have carved out certain exceptions to this general rule, if the act of the employer in discharging an employee violates the public policy of the State of Michigan. In those appellate decisions, however, the courts have spelled out the type of conduct that is violative of public policy. The appellate courts, however, have not as yet specified that the alleged actions of the defendants as set forth in plaintiffs complaint violate the public policy of this State, thereby constituting an exception to the aforementioned general rule. And, if the actions of the defendants are to be construed as violative of public policy, then it should be left to the appellate courts or the legislature to fashion such a rule of law.”

This Court has recognized exceptions to the well established rule that at will employment contracts are terminable at any time for any reason by either party. These exceptions were created to prevent individuals from contravening the public policy of this state.

It is without question that the public policy of this state does not condone attempts to violate its duly enacted laws.

Plaintiff claims that defendants discharged him from their employ when he refused to manipulate and adjust sampling results used for pollution control reports which were filed with the state pursuant to MCLA 323.1 et seq.; MSA 3.521 et seq. Such action would clearly violate the law of this state. MCLA 323.10; MSA 3.529(1).

Hence, we find that plaintiff has stated a claim upon which relief can be granted, and therefore the trial court erroneously granted defendants’ motion for summary judgment on the basis of this ground.

We must now determine whether or not plaintiff presented a genuine issue of material fact for litigation.

The trial court granted defendants’ motion for summary judgment, finding that the parties had failed to present a genuine issue of material fact under GCR 1963, 117.2(3).

"First, the facts contained in the affidavits of both defendants in support of their Motions for Summary Judgment stand unanswered. Plaintiffs assertion that the court rules do not require that counter-affidavits be filed in response to a Motion for Summary Judgment is correct. It is equally true, however, that if the affidavits of defendants show that there exists no genuine issue of fact and that the factual assertions contained in these affidavits are not contravened in some counter-affidavit, deposition, admission, or pleading under oath, then the defendants should prevail in their motions. In this proceeding there exists no deposition, affidavit, admission, or pleading under oath that contravenes the facts contained in defendants’ affidavit, and therefore, the factual assertions contained in said affidavit are accepted as true. Clearly, one of the purposes of the rule requiring an affidavit in support of a Motion for Summary Judgment is to challenge the opposing party to respond under oath to those facts contained in that affidavit. In this instance, the challenge has not been met.” (Emphasis in original.)

GCR 1963, 117.3 establishes the proper procedures to be used where the parties contest a motion for summary judgment under GCR 1963, 117.2(3):

"A motion based upon sub-rule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. The affidavits submitted by either party shall be governed by the provisions of sub-rules 116.4, 116.5 and 116.6. Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified. Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact. If it appears that the opposing party rather than the moving party is entitled to judgment, the court may render summary judgment in his favor without necessity of a motion therefor.”

Plaintiff maintains that this language allows him, in the face of the defendants’ motion for summary judgment and supporting affidavits, to rest upon the allegations made in his pleadings in contesting that motion. To support his argument he cites Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973), and Topps-Toeller, Inc v City of Lansing, 47 Mich App 720; 209 NW2d 843 (1973). As plaintiff notes, these cases do hold that it is not mandatory, where plaintiff seeks to block summary judgment, that he file counter-affidavits.

However, the trial court in the instant case did not grant defendants’ motion simply on the ground that plaintiff had failed to file opposing affidavits. To the contrary, after considering the entire record, the trial judge found that no material issue of fact had been presented. Plaintiff’s failure to submit any proof which would qualify as admissible evidence at trial to contradict the sworn statements made by defendants’ agents contributed to the trial court’s findings.

Under such circumstances, the granting of summary judgment was not improper.

"We do not mean to imply that the trial judge should dispose of a motion for summary judgment by referring only to the affidavits in support of and in opposition to the motion. The rule specifically directs that the affidavit shall be considered 'together with the pleadings, depositions, admissions and documentary evidence than filed.’ But what the court shall consider are the affidavits, the pleadings and other matters referred to in the rule being merely the background in which the affidavits must be considered. If, as here, the affidavits in support of the motion for summary judgment stand on the record uncontroverted by any opposing affidavits, depositions, or exhibits, then the allegations in the opponent’s unsworn pleadings should not deprive the party of his right to summary judgment.” Green v Lundquist Agency, Inc, 2 Mich App 488, 492; 140 NW2d 575 (1966). (Emphasis supplied.)

Accordingly, we find that the trial court properly viewed plaintiff’s case in its most favorable light, and found no issue of material fact. Hence, summary judgment was properly granted to defendants pursuant to GCR 1963, 117.3.

Affirmed. Costs to appellees.

       Defendant, C. P. Turner, was an employee of defendant, Detroit, Toledo & Ironton Railroad Co., and has adopted the company’s brief on appeal.

       MCLA 323.6a; MSA 3.526(1).

       45 USC § 151 et seq.

        Belanger v New York Central R Co, 274 F Supp 500 (ED Mich, 1966), affirmed, 384 F2d 35 (CA 6, 1967), Ciaccio v Eastern Airlines, Inc, 354 F Supp 1272 (ED NY, 1973), Dominguez v National Airlines, Inc, 279 F Supp 392 (SD NY, 1968), Smith v Atlantic Coastline R Co, 421 F2d 1400 (CA 5, 1970), Magnuson v Burlington Northern, Inc, 413 F Supp 870 (D Mont, 1976), Dorsey v Chesapeake & O R Co, 476 F2d 243 (CA 4, 1973).

        Sventko v The Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976).


author: J. H. Gillis, J.

text:
    THOMAS v THOMAS
    1. Judgment — Default Judgment — Service of Process — Proof of Service — Validity of Service — Court Rules.
    Failure to make proof of service does not affect the validity of the service; therefore, proof of service on the record is no longer a prerequisite to the entry of a valid default judgment (GCR 1963, 104[2], 520).
    2. Judgment — Default Judgment — Service of Process — Court Rules.
    Valid entry of a default judgment requires service of process upon the defendant either personally or by publication (GCR 1963, 105, 106).
    3. Divorce — Judgment—Default Judgment — Service of Process— Proof of Service.
    A default judgment of divorce should not be set aside on the basis that there is no proof of service in the court file where the defendant was actually served with a copy of the original complaint for divorce.
    4. Courts — No Progress Docket — Reinstatement of Case — Notice to Parties.
    There is no requirement that notice be given to the parties where their case has been reinstated from the court’s no-progress docket.
    Appeal from Macomb, Hunter D. Stair, J.
    Submitted January 3, 1978, at Detroit.
    (Docket No. 77-1468.)
    Decided February 23, 1978.
    Complaint by Neil A. Thomas against Sherrill L. Thomas for divorce. Default judgment of divorce granted to plaintiff. Defendant moved to have default judgment set aside. Motions denied. Defendant appeals.

      References for Points in Headnotes
    [1, 2] 47 Am Jur 2d, Judgments § 1174.

       24 Am Jur 2d, Divorce and Separation § 437.

       75 Am Jur 2d, Trial § 27.

      Affirmed.

      Brian M. Smith & Associates, P. C. (by Matt W. Zeigler), for defendant.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   J. H. Gillis, J.

On February 23, 1976, a default judgment of divorce was entered against defendant in Macomb County Circuit Court. Plaintiff was granted custody of the children and was not required to pay alimony to defendant.

On September 30, 1976, defendant moved to have the default judgment set aside on two grounds, 1) that no proof of service of the original complaint appeared in the court file, and 2) defendant had not been notified of the dismissal and reinstatement of the case. The trial court denied the motion. Defendant subsequently filed another motion based upon similar grounds which was also denied.

Defendant now appeals claiming error on the part of the trial court in refusing to grant the motion.

Defendant first contends that the default judgment must be set aside in that no proof of service of the original divorce complaint appears in the court file. Defendant, while admitting that she was actually served with a copy of the divorce complaint, claims that regardless of whether service has actually been made, a default judgment is void unless proof of service has been filed with the court before the default is taken. In support of this proposition, defendant cites Borg v Thomas, 338 Mich 669, 671, 672; 62 NW2d 466 (1954):

"In Dades v Central Mutual Auto Insurance Co, 263 Mich 260, 262 [248 NW 616 (1933)], this Court said:
" 'We have repeatedly held that unless the files of the court disclose proper proof of service of process a default entered is irregular; and the test is the condition of the file "on the day of default.” This is true notwithstanding service has been actually and lawfully made.’ ”

Defendant fails to note that the statute underlying Borg, supra, and similar cases has been repealed by the Revised Judicature Act of 1961, MCLA 600.101 et seq.; MSA 27A.101 et seq. The repealed statute did in fact require "due proof of service” before a default could be entered. However, under the new court rules, the taking of a default judgment is governed by GCR 1963, 520, which contains no such limitation. Furthermore, GCR 1963, 104(2) specifically states that:

"Failure to make proof of service does not affect the validity of the service.”

The combination of these two rules indicates that proof of service is no longer a prerequisite to the entry of a valid default judgment.

"Thus, default may now be entered without meeting a formal prerequisite of proof of service on the record. This does not mean, however, that a default may be validly entered when there has been no service of process upon the defendant either personally or by publication, as prescribed by Rules 105 and 106. The validity of the default and the default judgment must ultimately turn upon the fact of due service of process. If there is a motion to set aside the default or the default judgment or if there is a collateral attack upon the default judgment, the facts constituting due service of process will have to be shown.” 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 657.

Accordingly, since defendant was actually served with a copy of the original divorce complaint, the fact that no proof of service appears in the court file does not constitute a basis on which to set the default judgment aside.

Defendant next contends that she did not receive notice that the case had been dismissed and then reinstated, therefore, the default judgment must be set aside.

A careful review of the record reveals that the case was never dismissed. Instead, it was transferred to the "no progress” docket since no "steps or proceedings” were taken in respect to the matter for over one year. GCR 1963, 502.4.

Since the case was reinstated from the "no progress” docket, there is no requirement that notice be given to the parties.

The other issues raised on appeal do not merit discussion by this Court.

Accordingly, the trial court’s order denying defendant’s motion to set aside the default judgment is affirmed. Costs to appellee.

       Defendant admitted to actually being served with a copy of the original divorce complaint.

        See, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 312, interpreting Wayne County Court Rules.


text:
    ALLSTATE INSURANCE COMPANY v DeFRAIN
    1. Insurance — Automobiles—Liability Insurance — Exclusionary Clauses — Bodily Injury — No-Fault Act — Statutes.
    A clause in a motor vehicle liability insurance policy which provides that coverage under the policy does not apply to "bodily injury to any person who is related by blood, marriage, or adoption to an insured against whom claim is made if such person remains in the same household as such insured” is not valid and is unenforceable because it deprives third parties of protection which is required by the no-fault automobile insurance act (MCLA 500.3101, 500.3135; MSA 24.13101, 24.13135).
    2. Insurance — Automobiles—Liability Insurance — Exclusionary
    Clauses — Certified Policy — Statutory Requirements. Exclusionary clauses in an automobile liability insurance policy which cause a certified policy to deviate from statutory requirements are barred.
    3. Insurance — Automobiles—Liability Insurance — Exclusionary Clauses — Named Person — Statutes.
    Exclusion of liability coverage in an automobile liability insurance policy is allowed where a vehicle is operated by a named person and such exclusion is authorized by the insured; such an exclusion is not allowed where the exclusionary clause is designed to avoid liability when certain persons not involved in the operation of the motor vehicle are injured (MCLA 257.520[b] [2], 500.3009[2]; MSA 9.2220[b] [2], 24.13009[2]).
    4. Statutes — Construction of Statutes — In Pari Materia.
    Statutes dealing with the same matter are in pari materia and must be construed together to reach a harmonious result; it is important that the evident intent and meaning of the statutes as well as the force of them should be preserved.
    References for Points in Headnotes

       Am Jur 2d, New Topic, No-Fault Insurance §§ 18, 20, 23.
    7 Am Jur 2d, Automobile Insurance §§ 210, 211, 216, 218.

       7 Am Jur 2d, Automobile Insurance § 210 et seq.

       73 Am Jur 2d, Statutes §§ 187-190.

      Appeal from Ingham, Jack W. Warren, J.
    Submitted January 10, 1978, at Lansing.
    (Docket No. 77-2080.)
    Decided February 23, 1978.
    Leave to appeal applied for.
    Complaint by Allstate Insurance Company against Roy J. DeFrain seeking a declaratory judgment of no liability under a policy of insurance to defend a personal injury action commenced by defendant’s ex-wife. Judgment for defendant. Plaintiff appeals.
    Affirmed.

      Newman & Mackay, for plaintiff.

      Glassen, Rhead, McLean & Campbell, for defendant.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   R. E. A. Boyle, J.

Plaintiff appeals from a declaratory judgment entered May 24, 1977, wherein the trial court decided that a household exclusionary clause in the motor vehicle liability insurance policy of defendant with plaintiff was invalid and that plaintiff was under a duty to defend an action brought against defendant by his then wife, Bernadette Marie DeFrain.

The pertinent facts, which are undisputed, are these: On May 19, 1976, the said Bernadette De-Frain, then the wife of defendant, who resided in the same household as her husband, commenced an action against him for claimed injuries involving the serious disfigurement of her left leg and permanent impairment of the function of that leg. She alleged that these injuries were caused by the defendant’s operation of his 1968 Mercury automobile on January 16, 1974. The car had become stuck in the snow in the driveway of the parties’ home in Mason, Michigan.

She further alleged that defendant had placed a wooden plank about twelve feet long, twelve inches wide and two inches thick under the right rear wheel of the car in an attempt to drive the car forward. In the process, the right rear wheel of the car spun, throwing the board into his wife’s left leg, fracturing the left tibia and the left fibula.

At the time of this happening, defendant husband had a policy of motor vehicle liability insurance with plaintiff which was effective and in existence. This policy provided that coverage under the policy does not apply to "bodily injury to any person who is related by blood, marriage, or adoption to an insured against whom claim is made if such person remains in the same household as such insured”.

Plaintiff declined to defend the case commenced by Bernadette DeFrain against her now ex-husband, contending that the foregoing exclusionary clause was valid, and filed its complaint for declaratory judgment in circuit court requesting that the trial court adjudge plaintiff not be required to defend the action because of such exclusionary clause.

Defendant, in his answer to the complaint, contended the exclusion relied upon by plaintiff was legally unenforceable and that the exclusion was contrary to the law of the State of Michigan and its policy as enunciated by statute. He counterclaimed for declaratory relief asking that plaintiff be required to defend the case brought by Bernadette DeFrain against defendant herein in the Ingham County Circuit Court.

The sole issue is whether the exclusionary clause in question is valid and enforceable so as to relieve plaintiff from the responsibility of defending the case brought against defendant by his former wife for the alleged injuries.

We affirm the trial court and hold that such clause is not valid and enforceable. We agree with the analysis of another panel of this court in Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977).

While compulsory no-fault insurance partially abolished tort remedies, it retained residual liability as set forth in § 3135 of the act (MCLA 500.3135; MSA 24.13135), in accordance with which provisions Bernadette DeFrain, who was not the operator of the insured vehicle, brings suit against defendant. Section 3101 of the act (MCLA 500.3101; MSA 24.13101), requires that the policy coverage insure against serious injury to third parties.

Plaintiff concedes the abolition of interspousal immunity by the Supreme Court’s decision in Hosko v Hosko, 385 Mich 39; 187 NW2d 236 (1971). It concedes, also, that Bernadette DeFrain has the right to sue defendant here, Roy DeFrain, but that the exclusionary clause in question frees plaintiff from the duty to defend and from any liability on the policy with respect to this particular accident.

Exclusions that cause a certified policy to deviate from statutory requirements are barred. Lilje v Allstate Insurance Co, 393 Mich 259; 224 NW2d 279 (1974), Citizens Mutual Insurance Co v Central National Insurance Co of Omaha, 65 Mich App 349; 237 NW2d 322 (1975).

MCLA 500.3009(2); MSA 24.13009(2) allows the exclusion of liability coverage when a vehicle is operated by a named person, not where, as here, the exclusionary clause is designed to avoid liability when certain persons not involved in the operation of the motor vehicle (such as the wife in the instant case) are injured.

Plaintiff argues that the Legislature intended to exclude members of an insured’s household from residual liability coverage by its enactment of § 3114 of the no-fault act (MCLA 500.3114; MSA 24.13114), providing for personal protection insurance for members of the insured’s household. We disagree. The statutory amendment as to coverage, MCLA 257.520(b)(2); MSA 9.2220(b)(2), allows an exclusion only where a named person operates the automobile and such exclusion is authorized by the insured. The statute does not provide for any exclusion such as the one in this case.

In determining the legislative intent, we must examine the pertinent statutes. MCLA 500.3009(1); MSA 24.13009(1) provides for setting the minimum limits for coverage under a liability policy which insures against loss resulting "from liability imposed by law for * •* * bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle”. (Emphasis supplied.)

MCLA 257.520; MSA 9.2220 requires the policy to insure the named insured against loss "from liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle”. (Emphasis supplied.)

MCLA 500.3131; MSA 24.13131 of no-fault provides that "[r]esidual liability insurance shall cover bodily injury and property damage * * * [and that the] insurance shall afford coverage equivalent to that required as evidence of automobile liability insurance under the financial responsibility laws of the place in which the injury or damage occurs * * *. In this state this insurance shall afford coverage for automobile liability retained by section 3135” of the act. These statutes being in pari materia must be construed together and a reasonable construction at preserving the force and effect of each is to be sought. Palmer v State Land Office Board, 304 Mich 628; 8 NW2d 664 (1943), Moyer v Wayne County Road Commission, 52 Mich App 285; 217 NW2d 53 (1974), People v Martin, 59 Mich App 471; 229 NW2d 809 (1975).

We conclude that the exclusionary clause here in question is invalid. It is neither authorized by statute, nor in harmony with the legislative purpose to provide insurance coverage for bodily injuries as set forth in the above-cited statutes.

The trial court was correct in deciding the exclusion unenforceable, and that plaintiff is under a duty to defend.

Affirmed. Costs to defendant.