author: Allen, J.

text:
    JACKSON v VINCENT
    Docket No. 45359.
    Submitted April 1, 1980, at Detroit.
    Decided May 20, 1980.
    Gaynella Jackson, hereinafter plaintiff, brought a malpractice action against Dr. Charles Vincent and St. Joseph Mercy Hospital. Defendant Vincent moved for summary judgment and defendant St. Joseph Mercy Hospital moved for accelerated judgment; both motions based upon plaintiffs alleged failure to comply with the statutory period of limitations governing medical malpractice actions. The Wayne Circuit Court, Myron H. Wahls, J., granted both motions without a written opinion. Plaintiff appeals. Held:

    1. The suffering of pain followed by consulting a medical specialist does not constitute knowledge of malpractice as a matter of law, even where the pain disappeared following a second operation.
    2. The Court of Appeals views with disfavor a determination, by granting accelerated judgment, that a plaintiff is aware that a surgeon’s conduct was tortious.
    3. The six-month limitation period for medical malpractice actions commences to run from a time when a patient is informed of the condition which causes the pain or disability and in addition is informed that the act which caused the pain or disability need not have been done.
    4. Accelerated judgment is improper in medical malpractice cases where material factual disputes exist regarding discovery of the alleged malpractice.
    5. A patient need not be informed that an act constituted malpractice for the six-month limitation period to commence.
    Remanded with instructions.
    References for Points in Headnotes
    [1, 2, 4] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 188 et seq.

    [3] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 182, 183.
    [5] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 183.

      1. Physicians and Surgeons — Torts — Malpractice — Knowledge.
    The suffering of pain followed by consulting a medical specialist does not constitute knowledge of malpractice as a matter of law, even where the pain disappeared following a second operation.
    2. Physicians and Surgeons — Torts — Malpractice — Accelerated Judgment.
    The Court of Appeals views with disfavor a determination, by granting accelerated judgment, that a plaintiff is aware that a surgeon’s conduct was tortious.
    3. Limitation of Actions — Physicians and Surgeons — Malpractice.
    The six-month limitation period for medical malpractice actions commences to run from the time when a patient is informed of the condition which causes the pain or disability and in addition is informed that the act which caused the pain or disability need not have been done (MCL 600.5838[2]; MSA 27A.5838[2]).
    4. Physicians and Surgeons — Malpractice — Accelerated Judgment.
    Accelerated judgment is improper in medical malpractice cases where material factual disputes exist regarding discovery of the alleged malpractice.
    5. Physicians and Surgeons — Malpractice — Limitation of Actions.
    A patient need not be informed that an act constituted malpractice for the six-month limitation period for medical malpractice to commence (MCL 600.5838[2]; MSA 27A.5838[2]).

      Clifford R. Williams, for plaintiff.

      Charfoos & Charfoos, P.C. (by Dermis W. Archer), for defendant Vincent.

      Garan, Lucow, Miller, Seward, Cooper & Becker, P.C., for defendant St. Joseph Mercy Hospital.
    Before: J. H. Gillis, P.J., and Allen and Beasley, JJ.
   Allen, J.

In response to plaintiffs complaint against defendants alleging malpractice occurring during surgery on plaintiff in September 1975, defendant, St. Joseph Mercy Hospital (Hospital), moved for accelerated judgment, and defendant, Dr. Charles Vincent (Doctor), moved for summary judgment. Both motions were predicated upon plaintiffs alleged failure to comply with the statutory period of limitations governing malpractice suits, MCL 600.5805(3); MSA 27A.5805(3). Following a hearing, the trial judge, without written opinion, granted both motions May 18, 1979. From that decision plaintiff appeals of right.

Abdominal surgery was performed on plaintiff by defendant Doctor at the premises of defendant Hospital September 18-19, 1975. Following the operation, plaintiff complained of severe pain in the area of the surgery and, because of said pain, consulted a second doctor who placed plaintiff in Mount Sinai Hospital in August, 1977. She was operated on by the second doctor at Mount Sinai Hospital on August 3, 1977, who discovered that two nerves were firmly entrapped in the scar where Dr. Vincent had operated in 1975 and had sewn up with sutures. On September 9, 1977, plaintiff retained an attorney who promptly demanded that defendant Hospital send him plaintiff’s medical records. The operation report dated August 15, 1977, was furnished to plaintiffs attorney on October 15, 1977. Nevertheless, the bill of complaint was not filed until December 11, 1978.

Prior to July 9, 1975, a cause of action for malpractice by a state-licensed physician was required to be commenced within two years of the time the physician last treated the plaintiff or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later. Patterson v Estate of Flick, 69 Mich App 101, 103; 244 NW2d 371 (1976), Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973). In 1975 the Legislature shortened the period of limitations by amending MCL 600.5838(2); MSA 27A.5838(2) to read:

"An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred.” (Footnote omitted.) (Emphasis supplied.)

Section 5805 sets forth a two-year period of limitations and neither § 5851 nor § 5856 are pertinent to the factual situation in the instant case. Since the amendatory statute was in effect when Dr. Vincent performed the operations in September, 1975, and since it is evident that plaintiff exceeded the two-year limitation, the controlling question becomes when, by the exercise of reasonable diligence, should the plaintiff have discovered the existence of a claim.

Two cases of this Court have spoken to what is required in order to conclude as a matter of law that a person has or should have discovered asserted malpractice. Leary v Rupp, 89 Mich App 145; 280 NW2d 466 (1979), Leyson v Krause, 92 Mich App 759; 285 NW2d 451 (1979). While both cases noted that accelerated judgment is improper where material factual disputes exist regarding discovery of the alleged malpractice, both cases stated:

"[KJnowledge of the act and resulting injury alone may be insufficient to commence the running of the statute of limitations. On the other hand, it is not necessary that the plaintiff recognize that she has suffered an 'invasion of a legal right’. Patterson v Estate of Flick, 69 Mich App 101; 244 NW2d 371 (1976). We conclude that in order to discover 'asserted malpractice’ a person must know of the act or omission itself, i.e., prescribing polycillin, and have good reason to believe the act itself was improper or was done in an improper manner.
"Under certain circumstances mere knowledge of the act will be sufficient because it alone gives good reason to believe it was improper. For example, in Patterson, supra, the defendant severed a femoral nerve during an appendectomy resulting in paralysis.
"In contrast, a person may know of both the act and some resulting pain but not be aware of any wrongdoing by defendant.” Leary, supra, 149.

Defendants point to four evidentiary items, each contained in the pleadings or responses to interrogatories, showing that as early as August 15, 1977, and no later than October 15, 1977, plaintiff knew or had good reasons to know she had a claim. These are: (1) that following the operation by her second doctor in 1977 the pain disappeared (Paragraph 5 of plaintiffs answer to the Hospital’s motion for accelerated judgment); (2) Mount Sinai Hospital records stating that the pre-operative and post-operative diagnosis of plaintiffs difficulty was entrapment of ilioinguinal nerves, and that plaintiff was so informed by her second doctor in August 1977; (3) that within a month of the August 1977 operation, plaintiff retained an attorney; (4) that in August 1977 plaintiff was told by her second doctor that there was no need for Dr. Vincent to have cut and/or sewn the nerves into muscle tissue (plaintiff’s answer to Dr. Vincent’s interrogatory #5).

We are not persuaded that items (1) through (3) either singly or collectively were sufficient to inform plaintiff that she had a claim. The suffering of pain followed by consulting a medical specialist does not constitute knowledge of malpractice. Farris v Beecher, 85 Mich App 208, 213; 270 NW2d 658 (1978). Knowledge of an operation and subsequent pain is insufficient in itself to make a patient aware of wrongdoing in the operation. Leary, supra. In the instant case, we have the added element that the pain disappeared following the second operation. But even that, to us at least, is not enough to conclude that, as a matter of law, plaintiff has knowledge of a claim for malpractice.

Item (2) is unpersuasive since there is no showing or allegation that plaintiff was shown or told about the records from Mount Sinai Hospital. The records which plaintiff’s counsel obtained on or about October 15, 1977, were the records from St. Joseph Mercy Hospital where the operation which is claimed to have been negligently performed took place. Naturally, the records from that hospital would not put counsel on notice that a malpractice claim existed.

Nor can we say that consulting an attorney is sufficient proof that plaintiff was aware she had a claim for malpractice. This Court views with disfavor determining by accelerated judgment that a plaintiff is aware that a surgeon’s conduct was tortious. Whitney v Gallagher, 64 Mich App 46; 235 NW2d 57 (1975), Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976), Weiss v Bigman, 84 Mich App 487; 270 NW2d 5 (1978), Ellis v Lauter, 93 Mich App 584; 287 NW2d 192 (1979). Even if plaintiff had been informed by her second doctor that the cause of her two year discomfort was nerves sewn into abdominal tissue, a fact which for purposes of this case may well have occurred, and which we will assume did occur, it does not necessarily follow that the act causing the discomfort was improper or negligently performed. While correct knowledge of one’s condition may make one suspicious and cause him or her to seek an attorney, this Court stated in Schalm v Mt Clemens General Hospital, 82 Mich App 669, 674; 267 NW2d 479 (1978):

"There will be cases where no reasonable minds could differ on the discovery question and accelerated judgment would be proper in such a case. However, in this case there is some room to question whether plaintiff knew or should have known that this first group of doctors had committed malpractice when he was told of his true condition in February of 1971.
"Plaintiff’s knowledge of his true condition is but one factor in evaluating the question of reasonableness of his efforts to discover the asserted malpractice.”

We believe item (4) may well be dispositive of the question of whether plaintiff knew she had a claim. Defendant Vincent contends that following the operation at Mount Sinai Hospital in early August, 1977, plaintiff was not only told by her then doctor that nerves were found stitched in scar tissue where Dr. Vincent had operated but, in addition, was informed that there was no need for the nerves to have been so cut or stitched. Defendant Vincent asserts this fact is evidenced by plaintiffs answer to his interrogatory #5.

"5. Please state with specificity your basis for your allegation in paragraph 7 that Dr. Vincent was negligent in entrapping the ilioinguinal nerve in the incision where surgery was performed on or about September 18, 1975.”
"You will note in the operation report dated 8-15-77, dictated by Dr. Scher (see Exhibit "A”), that he found upon exploration of the area that the right ilioinguinal and right iliohypogastric nerves had been firmly entrapped in scar in the subcutaneous area, and could not be freed, and thusly with lysis (loosening or freeing the nerves) impossible, the nerves had to be cut. That the doctors indicated, had indicated, and will testify at trial, that these nerves were stitched into the tissue and that there was no need to cut these nerves for the medical operation which the client had submitted to by DR. VINCENT.”

Plaintiff argues that even if she were told that it was unnecessary to have sewn the nerves into the abdominal area, this was insufficient to place her on notice since her doctors "did not tell plaintiff in this case that the other doctors had committed an act of malpractice”. In other words, plaintiff contends that not only must the patient be told that something which caused pain need not have been done, but in addition, must be informed that the act is malpractice. We disagree. To interpret or construe the statute in such manner would open the door to abuse. In effect, it would eliminate the "discovers or should have discovered the existence of the claim” language of the statute until after a plaintiff goes to an attorney and the attorney obtains a medical opinion clearly stating that the act in question constitutes negligence. In our opinion, the six month period commences to run where a patient is informed of the condition which causes the pain or disability and in addition is informed that the act which caused the pain or disability need not have been done. Leyson, supra, 764, Leary, supra, 149.

If Dr. Vincent’s assertion is true, then, as a matter of law, plaintiffs claim would be barred because she would have actually discovered her claim nearly 16 months prior to the filing of her complaint, ten months beyond the period authorized by MCL 600.5838(2); MSA 27A.5838(2). In contrast, if plaintiff was not actually told by her second physician that Dr. Vincent acted improperly in cutting and/or sewing the nerves into muscle tissue, but only discovered her claim against the doctor within six months of the filing of the complaint, then we would be required to reverse the lower court’s judgment and remand for consideration by the jury of whether, in light of the evidence, plaintiff "should have discovered the existence of the claim”. MCL 600.5838(2); MSA 27A.5838(2).

The problem in the case before us is that plaintiff’s response to interrogatory #5 does not specify the date when plaintiff was informed that Dr. Vincent need not have sewn or cut the nerves in question. It is true that the doctors "indicated, had indicated and will testify at trial”, but the date they had so indicated is not given. It is not at all improbable that plaintiff was not so informed until after her attorney, after receipt of the records from St. Joseph Hospital, had followed up by contacting Dr. Scher and Mount Sinai Hospital and their conclusions were not given to plaintiffs attorney until some period six months prior to the filing of the bill of complaint. This possibility is strongly suggested at page 12 of the transcript of the hearing on the motions for accelerated and summary judgment. At that hearing, plaintiff was represented by attorney Clifford Williams who explained that Ronald G. Kraft was the initial counsel and the one who filed the bill of complaint. Mr. Williams stated he did not have personal knowledge of when attorney Kraft first knew that there was malpractice and would like a postponement so that Mr. Kraft might come in and testify or submit affidavits "relative to when he obtained the information as to the act of malpractice”. In the same transcript at page 15, attorney Williams stated:

"* * * if the Court wants me to get into this motion and will not allow me time to get documents from this doctor in California and we have not had time — then I will go into the argument as far as this matter is concerned but the primary purpose of my argument today is that we can show, if given time that this woman was never told by anyone that an act of malpractice had been committed on her.
"Now, when Mr. Kraft, who was the prior attorney in this matter, filed this action in December of 1978, he filed it based on knowledge at that time from another doctor that had given him an opinion in November of 1978 that an act of malpractice had been committed.”

Attorney Williams’ request for a postponement was denied. We believe that this was a mistake since we fail to see how a decision on the motion for accelerated judgment could be made without a determination of if, and at what date, plaintiff or her counsel were first informed that stitching the nerves in question was an unnecessary act of surgery.

Nevertheless, reversal and remand to the trial court for trial by jury is not the proper remedy at this time. Instead, the trial court should make a finding of fact on the limited question posed in issue (4) above. This is a threshold question which properly may be decided by the court. For this purpose the trial court should hold an evidentiary hearing to determine if plaintiff or her counsel were in fact told of Dr. Vincent’s unnecessary act, and if so, the date that plaintiff or her counsel were so informed. At said hearing, the testimony or depositions of Dr. Scher, attorney Ronald Kraft, and plaintiff should be taken. If, at the conclusion of said hearing, the trial court shall find that plaintiff or her counsel was so informed of defendant Vincent’s unnecessary act and that such information was given in August 1977, or at any date six months prior to the filing of the bill of complaint December 11, 1978, then the trial court’s grant of accelerated and summary judgment is affirmed. But, if at the conclusion of said hearing the trial court shall find that neither plaintiff nor her counsel was so informed until within six months of December 11, 1978, the judgment of the trial court is reversed and trial shall be had by jury. At said trial, the jury shall then decide the issue posed by MCL 600.5838(2); MSA 27A.5838(2), of whether, based on all the evidence introduced at trial, including evidence relating to items (1) through (4) inclusive, plaintiff discovered or should have discovered the existence of a claim. Leyson, supra, 764, Leary, supra, 149.

Remanded in accordance with this opinion. This Court does not retain jurisdiction.

       Section 5851 relates to actions by or on behalf of infants or the insane. Section 5856 sets forth conditions for tolling of the statute following filing of the complaint and service on defendant.

       It should be noted that defendant Hospital does not claim that plaintiff was told it was unnecessary to have stitched or cut the nerves. The Hospital claims that plaintiff was told of her condition, viz: — that certain nerves were found stitched in her abdomen where the earlier operations had been performed and that knowledge of this fact alone as a matter of law places plaintiff on notice that she has a claim for malpractice.

       Plaintiff made a timely demand for jury.


source: Caselaw Access Project

author: R. B. Burns, J.

license: Public Domain

text:
    PEOPLE v WILSON
    Docket Nos. 46014, 46015.
    Submitted April 10, 1980, at Lansing.
    Decided May 20, 1980.
    David R. Wilson was charged with breaking and entering with intent to commit a larceny and attempting to injure or destroy a safe or vault with intent to commit larceny. With defendant’s consent, the Livingston Circuit Court, Bert M. Hensick, J., assigned defendant to the status of a youthful trainee. The trial court placed defendant on probation and sentenced defendant to spend the first 90 days in jail as a condition of probation. Defendant appeals, arguing that the trial court exceeded its statutory authority in imposing a jail term as a condition of the probation given in accordance with the Holmes Youthful Trainee Act. Held:

    1. The sense of the language of the commitment provision of the Holmes Youthful Trainee Act would not be rendered dubious by giving the term "or”, as used therein, its accurate disjunctive meaning. Given the disjunctive meaning of the term "or” as used in that portion of the act, the act permits the court to either commit the youth to the department of corrections for custodial supervision and training or place the youth on probation. Under the Youthful Trainee Act, the court may not both place the youth on probation and impose a jail sentence as a condition of that probation.
    2. Neither the general sentencing statute nor the general probation statutes apply to a youth admitted to the status of a youthful trainee under the Holmes Youthful Trainee Act, since the general sentencing and the general probation statutes are both predicated upon a defendant’s having been convicted of a crime and a youth assigned the status of a youthful trainee is not deemed to have been convicted of a crime.
    Remanded for resentencing.
    1. Words and Phrases — "Or” — Disjunctive Meaning — Dubious Sense.
    The term "or” should be read as having its accurate disjunctive meaning unless such a reading would render the sense of such use dubious.

      References for Points in Headnotes
    [1, 2] 73 Am Jur 2d, Statutes §§ 241, 298.
    [3] 21 Am Jur 2d, Criminal Law §§ 525 et seq., 526 et seq., 576 et seq.

      2. Criminal Law — Sentencing — Youthful Trainees — Alternative Sentences — Statutes.
    Giving the word "or”, as used in the commitment provision of the Holmes Youthful Trainee Act, its accurate disjunctive meaning does not render the sense of such use dubious; accordingly, under such act, a court, with respect to a youth admitted to trainee status, must either commit the youth to the department of corrections for custodial supervision and training or place the youth on probation, but the court may not both place the youth on probation and impose a jail sentence as a condition of that probation (MCL 762.13; MSA 28.853[13]).
    3. Criminal Law — Sentencing — Youthful Trainee Status —
    Probation — Jail Term — Statutes.
    Neither the general sentencing statute nor the general probation statutes apply to a youth admitted to the status of a youthful trainee under the Holmes Youthful Trainee Act, since the general sentencing statute and the general probation statutes are predicated on a defendant’s having been convicted of a crime and a youth assigned to the status of a youthful trainee is not deemed to have been convicted of a crime (MCL 762.13, 769.1, 771.1, 771.3[2]; MSA 28.853[13], 28.1070, 28.1131, 28.1133[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Frank R. Del Vero, Prosecuting Attorney, and Avery Weiswasser, Assistant Prosecuting Attorney, for the people.

      Jules N. Fiani, for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Defendant was charged with breaking and entering a gas station with the intent to commit larceny, MCL 750.110; MSA 28.305, and with attempting to break, burn, blow up or otherwise injure or destroy a safe, vault or other depository of valuables with the intent to commit larceny, MCL 750.531; MSA 28.799. With defendant’s consent, the trial court assigned defendant to the status of youthful trainee pursuant to MCL 762.11; MSA 28.853(11). Though he was placed on probation, defendant was sentenced to spend the first 90 days in the county jail as a condition of that probation. On appeal defendant maintains that the trial court exceeded its statutory authority in imposing a jail term as a condition of probation after it had granted defendant the status of youthful trainee. We agree.

Section 13 of the Holmes Youthful Trainee Act, MCL 762.13; MSA 28.853(13), provides:

"If a youth is assigned to the status of a youthful trainee and the underlying charge is an offense punishable by imprisonment in a state prison for a term of more than 1 year, the court shall (a) commit the youth to the department of corrections for custodial supervision and training for a period not to exceed 3 years in an institutional facility designated by the department for such purpose or (b) place the youth on probation for a period not to exceed 3 years. A youth placed on probation shall be under the supervision of a probation officer or community assistance officer appointed by the corrections commission. Upon commitment to and receipt by the department of corrections, a youthful trainee shall be subject to the direction of the department of corrections.”

Under this statute, the court may either: (a) commit the youth to the department of corrections for custodial supervision and training, or (b) place the youth on probation. By its use of the disjunctive "or” and by its separate enumeration of the two alternatives, the statute directs the trial court to sentence the youth to either imprisonment or probation. We do not find in this statute the authority to sentence a youth to both imprisonment and probation.

This Court has noted the fact that the frequent misuse of the terms "or” and "and” has sometimes led the courts to read one term in place of the other, thus conferring on the term "or” a conjunctive meaning and on the term "and” a disjunctive one. See, e.g., Aikens v Dep’t of Conservation, 387 Mich 495, 500; 198 NW2d 304 (1972), Reynolds v Great American Ins Co of New York, 328 Mich 391, 397; 43 NW2d 901 (1950), Heckathorn v Heckathorn, 284 Mich 677, 681; 280 NW 79 (1938), Esperance v Chesterfield Twp, 89 Mich App 456, 461; 280 NW2d 559 (1979). However, we are mindful that the Supreme Court has held that the terms are not to be treated as "interchangeable” and that they "should be followed when their accurate reading does not render the sense dubious”. Heckathorn, supra, 681. In the present case, an accurate reading of the term "or” does not render the statute "dubious”, and we therefore hold the term to its disjunctive meaning.

We next consider whether the general sentencing statutes confer upon the trial court the authority to impose a jail term upon defendant as a condition of his probation, and find that they do not.

MCL 769.1; MSA 28.1072 gives the trial court authority to sentence any individual who has been convicted of an offense against the laws of this state. Defendant, however, has not been convicted of any crime. Pursuant to § 14 of the Holmes Youthful Trainee Act, MCL 762.14; MSA 28.853(14), "[a]n assignment of a youth to the status of youthful trainee, as provided in this chapter, shall not be deemed to be a conviction of crime”. Similarly, the court is powerless to sentence the defendant to jail as a condition of probation under the general probation statutes, MCL 771.1, 771.3(2); MSA 28.1131, 28.1133(2), which also are predicated upon the defendant’s having been found guilty of an offense, MCL 771.1(1); MSA 28.1131(1).

As we have found no statutory authority justifying the imposition of a jail term as a condition of probation for a youthful trainee, the defendant’s sentence is set aside and the matter is remanded for resentencing in accordance with this opinion.


author: Beasley, J.

text:
    FRESARD v MICHIGAN MILLERS MUTUAL INSURANCE COMPANY
    Docket No. 46110.
    Submitted March 5, 1980, at Lansing.
    Decided May 20, 1980.
    Leave to appeal applied for.
    Plaintiffs George A. Fresard, Donald Fresard, George A. Fresard, Jr., Thomas Fresard, Fresard Building Company and Fresard Builders, Inc., are builders who carried comprehensive general liability insurance with defendant, Michigan Millers Mutual Insurance Company. Mr. and Mrs. Harding entered into a contract with Fresard Building Company for the construction of a new home. After construction, when the Hardings moved in, they experienced water accumulations in the basement causing deterioration of the walls and foundation. The problem was that an opening in the drainage system allowed sand to flow into the system and be carried away from under the footings, causing a corner of the house to drop and the basement wall to drop and buckle. The problem was caused by the installation of standard drain tile material in an abnormal ground condition. The drain tile allowed the entry of sand into the system. The Hardings brought suit against plaintiffs. Plaintiffs notified defendant of the action, which defendant undertook to defend under a reservation of rights understanding. The claim was settled, with plaintiffs contributing 50 percent of the settlement and defendant contributing 50 percent. Plaintiffs brought an action against defendant in Macomb Circuit Court for a declaratory judgment that defendant was obligated to defend the lawsuit brought against plaintiffs by the Hardings and to pay any judgments rendered against plaintiffs. The policy contained the following language:
    "This insurance does not apply: (a) To liability assumed by the insured under any contract or agreement, except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner; * * * (k) to injury or property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured, if such failure is due to a mistake or deficiency in any design, formula,. plan, specifications, advertising material or printed instructions prepared or developed by the insured; but this exclusion does not apply to bodily injury or property damage resulting from the active malfunctioning of such products or work; * * * (m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith”.

      References for Points in Headnote
    [1] 43 Am Jur 2d, Insurance § 279.

      The court, George R. Deneweth, J., granted summary judgment for plaintiffs. Defendant appeals. Held:

    1. An insurer has a duty to express clearly the limitations of its obligation, and any ambiguities in an insurance policy must be construed against the insurer. A technical construction of policy language which would defeat an expectation of coverage is not favored. Section (m) is repugnant to section (a), and, since section (a) is the more specific clause, it should govern.
    2. Coverage is not barred by exclusion (k). The damage was caused by the active harm of the drainage system’s carrying away of sand from beneath the foundation of the house.
    Affirmed.
    Insurance — Liability Insurance — Exclusions — Ambiguous Terms — Construction of Ambiguities.
    An insurer has a duty to express clearly the limitations of its obligation, and any ambiguities in an insurance policy must be construed against the insurer; a technical construction of policy language which would defeat an expectation of coverage is not favored.

      Scholl, Theut, Robinson, Steig & Schellig, for plaintiffs.

      Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell), for defendant.
    Before: M. J. Kelly, P.J., and D. F. Walsh and Beasley, JJ.
   Beasley, J.

Plaintiffs are builders who carry comprehensive general liability insurance policies with defendant. When a lawsuit for damages was brought against plaintiffs by William Harding and Delphine Harding, as purchasers, arising out of a building contract for the construction and sale of a new house, a dispute arose between plaintiffs and defendant concerning coverage under the insurance policy. Defendant undertook the defense under a reservation of rights understanding. During trial, this claim against plaintiffs was settled for $50,000, one-half of which was contributed by each, i.e., by plaintiffs and by defendant. Plaintiffs then brought this action for a declaratory judgment that defendant was obligated under the insurance policy to defend the lawsuit brought against plaintiffs and to pay any judgments rendered against plaintiffs. Both the plaintiffs and the defendant sought summary judgment. The trial judge filed a written opinion, holding in favor of plaintiffs and against defendant. Defendant appeals as of right.

The facts are that in 1970, after the Hardings moved into the new house built by plaintiffs, they began to experience problems. Water began to accumulate on the basement floor, there was recurrent flooding of the basement and the foundation and walls began to deteriorate. This situation continued, and plaintiffs embarked on a program of repairs until March, 1976.

According to the parties’ stipulation of facts, the cause of the problem was an opening in the drainage system which allowed sand to flow into the system and be carried away. Some of this sand came from under the footings, causing a corner of the house and a basement wall to drop and buckle. This problem was accentuated by the installation of standard drain tile material in an abnormal ground condition. The drain tile allowed entry of sand into the system.

This case hinges upon the interpretation to be given the following exclusionary provision in the policy issued by the defendant:

"This insurance does not apply:
"(a) To liability assumed by the insured under any contract or agreement, except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
"(i) to property damage to
"(1) property owned or occupied by or rented to the insured,
"(2) property used by the insured, or
"(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control;
"(j) to property damage to premises alienated by the named insured arising out of such premises or any part thereof;
"(k) to bodily injury or property damage resulting from the failure of the named insured’s products or work completed by or for the named insured to perform the function or serve the purpose intended by the named insured, if such failure is due to a mistake or deficiency in any design, formula, plan, specifications, advertising material or printed instructions prepared or developed by the insured; but this exclusion does not apply to bodily injury or property damage resulting from the active malfunctioning of such products or work;
"(1) to property damage to the named insured’s products arising out of such products or any part of such products;
"(m) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith”.

Defendant argues that plaintiffs are seeking to recover property damage to the completed building, which was work performed by them, that the damage arose out of the work and that; therefore, there is no coverage under exclusion paragraph (m).

Plaintiffs argue, however, that paragraph (a) specifically excepts from exclusion damages caused by breach of warranty that the work performed by the insured is done in a workmanlike manner. Plaintiffs reason that, since the Hardings brought suit based on breach of warranty, the exception to exclusion (a) applies and would grant coverage.

This is a case of first impression in Michigan. In such event, we give consideration to cases in other jurisdictions which have construed insurance policy clauses identical to the ones here.

An often cited South Dakota case, relied upon by defendant, is Haugan v Home Indemnity Co. In that case, the plaintiff designed and constructed an aircraft hanger with adjoining office building. After construction, the building separated from its foundation and was damaged. The court, in construing a policy with exclusion clauses identical to those in this case, held that coverage was excluded under paragraph (m). The court, in Haugan, reasoned as follows:

"Exclusion (a) does not extend or grant coverage. To the contrary it is a limitation or restriction on the insuring clause. The exception to exclusion (a) merely removes breach of implied warranty of fitness, quality, or workmanship from the specific exclusion relating to contractual liability. The. exception remains subject to and limited by all other related exclusions contained in the policy. When considered with exclusion (m) it clearly appears that property damage claims of third persons resulting from the insured’s breach of an implied warranty are covered unless the claimed loss is confined to the insured’s own work or work product.”

In a nutshell, Haugan found that there was no direct conflict between clauses (a) and (m) and that, applying exclusion (m), the only claims for breach of warranty based on property damage covered under the policy were those which resulted in property damage beyond the insured’s own work or work product.

The dissenting opinion in Haugan reasoned that the effect of the majority opinion was to subordinate exclusion (a) to that of (m). It was argued that the two clauses were of equal rank and should have been read together with the specific clause (a) prevailing over the general clause (m). The result would then be an interpretation that the policy would not cover property damage to work performed by the insured arising out of that work with the exception of damage to the work resulting from breach of warranty.

In Fontainebleau Hotel Corp v United Filigree Corp, the court reached the same result as the Haugan dissent. There, the court concluded that exclusion (m) was repugnant to exclusion (a). They reasoned that (a) was the more specific clause and that, therefore, the terms of (a) governed. Additionally, the court noted:

"Exclusion (m) * * * take[s] away the coverage granted by Exclusion (a). The law does not allow such a situation. A policy may not give a right in one paragraph and retract it in another unless the limitation is clearly expressed. We do not have an expression of any kind in the case at bar.”

The same reasoning was employed to find that coverage existed in Federal Insurance Co v PAT Homes, Inc.

We find that the rationale in Fontainebleau and Federal Insurance Co is more persuasive than that in Haugan. Further, such a rationale is in keeping with the general rules regarding construction of insurance policies in Michigan.

When there is an ambiguity, insurance policies drafted by the insurer must be construed in favor of the insured to uphold coverage. An insurer has a duty to clearly express the limitations in its policy. A technical construction of policy language which would defeat an expectation of coverage is not favored.

We find that if the defendant intended to exclude all property damage to the work product of the insured arising out of that work, including damage for breach of warranty, that limitation must be clearly expressed in the policy. Here, it was not. On the contrary, under the clear wording of the policy, an expectation of coverage was created for claims arising from property damage to the insured’s work product grounded on breach of warranty.

Therefore, we interpret the exclusion in paragraph (m) to exclude coverage for property damage to the insured’s work product arising out of that work only in cases other than those grounded in breach of warranty. Accordingly, we conclude that the trial court did not err in finding coverage was not excluded under paragraph (m).

Defendant’s next argument is that coverage is denied plaintiffs by paragraph (k), supra, the "active malfunctioning” provision. Defendant argues that the trial court erred in finding that the water drainage system installed by the plaintiffs "actively malfunctioned” so as to come within the exception to the exclusion in the policy. We do not agree.

The active malfunctioning exception to exclusion (k) is defined in American Employer’s Ins Co v Maryland Casualty Co as follows:

"Design errors resulting in mere 'passive’ failure to discharge an intended function are regarded as the insured’s normal business risk and are excluded from coverage, while design errors themselves causing some positive or 'active’ harm deemed extraordinary in the insured’s business are covered. Thus, to recite some of the hypotheticals appearing in commentaries dealing with the clause, the policy is not intended to cover liability resulting from the faulty design of an insecticide which fails to kill insects, a hair tonic which fails to prevent baldness, or a rust inhibitor which fails to inhibit rust. On the other hand, the active malfunctioning exception would apply to provide coverage for liability resulting from an insecticide which harms crops to which it is applied, a hair tonic which causes a scalp rash, or a rust inhibitor which corrodes a radiator to which it is added.” (Footnotes omitted.)

In this case, the water drainage system originally employed by the plaintiffs did carry away the water from the house foundation, which was its intended purpose. However, the parties’ stipulated statement of facts indicates that the drainage system also allowed entry of sand, thereby draining away sand along with the water, damaging the house.

Accordingly, the design error in the water drainage system used by plaintiffs caused the positive or "active” harm of drawing sand away. Such an "active malfunctioning” comes within the exception to exclusion (k) and, therefore, results in coverage to plaintiffs. The trial judge did not err in so finding.

Affirmed.

       Both sides agree that the policy does not grant coverage unless there is an express exception to its exclusion.

       86 SD 406, 413; 197 NW2d 18 (1972).

       298 So 2d 455 (Fla App, 1974).

         Id., 460.

       113 Ariz 136; 547 P2d 1050 (1976).

        Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62, 64; 250 NW2d 541 (1976), Francis v Scheper, 326 Mich 441; 40 NW2d 214 (1949).

        Ornamental Iron & Stair Co v General Accident & Life Assurance Corp, Ltd, 68 Mich App 259; 242 NW2d 544 (1976).

        Crowell v Federal Life & Casualty Co, 397 Mich 614; 247 NW2d 503 (1976), State Farm Mutual Automobile Ins Co v Ruuska, 90 Mich App 767; 282 NW2d 472 (1979).

       509 F2d 128 (CA 1, 1975).

        Id., 130.


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

text:
    INGRAM v McCASTLE
    Docket No. 46132.
    Submitted April 10, 1980, at Lansing.
    Decided May 20, 1980.
    Leave to appeal applied for.
    Woodrow Ingram and his wife, Lottie, were injured when their automobile collided with a vehicle operated by Danny L. McCastle and owned by W. J. Hightower. The Ingrams brought an action for damages against both McCastle and Hightower, neither of whom were insured. The Secretary of State, acting in the capacity as director of the Motor Vehicle Accident Claims Fund, intervened as defendant, in accordance with the provisions of the Motor Vehicle Accident Claims Act, when McCastle and Hightower defaulted. During the pendency of the action in circuit court, Lottie Ingram died from causes unrelated to the accident, and Woodrow Ingram continued the action both on his own behalf and as administrator of the estate of Lottie Ingram. A consent judgment was entered in favor of the estate of Lottie Ingram in the amount of $40,000, of which $20,000 was paid by the Secretary of State out of the Motor Vehicle Accident Claims Fund, that amount being the statutory maximum which may be paid on account of an injury or death of one person. Following a bench trial on Woodrow Ingram’s claims for damages arising out of his own injuries, for recovery of medical expenses for treatment of Lottie, for recovery of wages he lost by reason of Lottie’s injuries, and for loss of services and companionship, the Wayne Circuit Court, Roland L. Olzark, J., entered a judgment in favor of plaintiff Woodrow Ingram individually in the amount of $24,749.75, all but $950 of that sum being for costs and losses relating to Lottie’s injuries. When the Secretary of State failed to object to payment of that judgment within the statutory 30-day period in which the Secretary of State has to act upon an application for payment, plaintiff moved to compel payment of the individual judgment. In answering the motion to compel payment, the Secretary of State argued that payment by the Fund of that portion of the plaintiff’s individual judgment relating to costs and losses arising out of the wife’s injuries was barred by the fact that the Fund had already paid the statutory maximum of $20,000 on account of the injury to Lottie Ingram and that, with respect to the $950 for Woodrow Ingram’s own injuries, the Fund’s obligation to make payment was extinguished by the $1,900 payment received by Woodrow Ingram from a private insurer. The trial court granted the motion to compel payment and ordered the Secretary of State to pay to plaintiff $20,000 plus interest and costs, the court holding that any objections to payment were waived by the failure of the Fund to comply with the 30-day notice requirement. The Secretary of State appeals. Held:

      References for Points in Headnotes
    [1] 7 Am Jur 2d (Rev), Automobile Insurance § 298.
    [2] 7 Am Jur 2d (Rev), Automobile Insurance § 327.
    7 Am Jur 2d, Automobiles and Highway Traffic § 413.
    Validity and construction of provisions of unsatisfied claim and judgment statutes for deduction from awards of sums collectible by claimant from other sources. 7 ALR3d 836.

      1. The Motor Vehicle Accident Claims Fund is, by statute, not liable for more than $20,000 on account of the injury or death of any one person. Since all but $950 of plaintiff’s individual judgment involved costs and losses which flowed from the injuries to plaintiff’s deceased wife, and since the Fund had already paid $20,000 to the estate of plaintiff’s wife for injuries to plaintiff’s deceased wife arising out of the accident, the portion of plaintiff’s individual judgment which arose out of his deceased wife’s injuries constituted a claim in excess of the statutory maximum payment.
    2. The Motor Vehicle Accident Claims Act clearly permits the Fund to set off against any claim against the Fund any amounts received by reason of the existence of a policy of insurance. Since plaintiff admitted that he had received $1,900 from a private insurer, the Fund would be able to apply that amount against the obligation of the Fund. The amount of plaintiff’s individual injuries having been determined to be only $950, the application of the setoff would result in no obligation on the part of the Fund to pay plaintiff for his individual injuries.
    3. Since the Motor Vehicle Accident Claims Act provides that the Secretary of State may recover any amount paid by the Fund in excess of the amount authorized by the Act, and since there is no time limitation associated with bringing such an action, the failure of the Secretary of State to make a timely objection to payment does not constitute a waiver of the defense that the statutory maximum amount has been paid. The Secretary of State may raise at any time the defense that the statutory limits of the Fund have been paid.
    Reversed and remanded.

      1. Automobiles — Motor Vehicle Accident Claims Fund — Limitation of Payments — Statutes.
    The Motor Vehicle Accident Claims Fund is by statute not liable for more than $20,000 for the injuries attributable to any one person (MCL 257.1123[1]; MSA 9.2823[1]).
    2. Automobiles — Motor Vehicle Accident Claims Fund — Other Insurance Coverage — Setoffs — Statutes.
    The Motor Vehicle Accident Claims Fund may set off any amounts received by a claimant under the uninsured motorist coverage of a policy of insurance issued by an insurer (MCL 257.1122[2]-[3]; MSA 9.2822[2]-[3]).
    3. Automobiles — Motor Vehicle Accident Claims Fund — Timely Objection to Payment — Failure to Object — Waiver — Statutory Liability Limits.
    The failure of the Secretary of State, acting in his capacity as director of the Motor Vehicle Accident Claims Fund, to make a timely objection to payment as required by the Motor Vehicle Accident Claims Act does not waive the right of the Secretary to assert the defense that the Fund has paid the maximum amount permitted by statute; the Secretary of State may raise the defense of payment from the Fund of the statutory limits at any time.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by David K. Barnes), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Edgar L. Church, Jr., Assistants Attorney General, for defendant Secretary of State.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   D. C. Riley, P.J.

On June 13, 1973, an action was commenced by plaintiffs, Woodrow Ingram and his wife Lottie, for injuries each had sustained when their automobile collided with a vehicle owned by defendant W. J. Hightower and operated by defendant Danny McCastle, both uninsured. The Secretary of State intervened as a party-defendant under MCL 257.1108; MSA 9.2808, on the individual defendants’ behalf.

While the matter was pending, plaintiff Lottie Ingram died, apparently from causes unrelated to the automobile accident. The cause of action was continued by plaintiff Woodrow Ingram on his own behalf and as administrator of his wife’s estate.

On June 3, 1977, a consent judgment was entered in favor of the estate of Lottie Ingram and against the individual defendants in the amount of $40,000, of which $20,000 was paid by the Secretary of State out of the Motor Vehicle Accident Claims Fund.

On June 7, 1977, a judgment of $24,749.75 was entered for plaintiff (hereinafter the term plaintiff shall refer to Woodrow Ingram in his individual capacity only), of which all but $950 was for costs related to his wife’s injuries. Plaintiff moved to compel payment of the judgment on August 22, 1977. This motion was granted because the intervening defendant had failed to comply with the requirement of MCL 257.1107(2); MSA 9.2807(2), that objections to payment must be made within 30 days of receipt of an application for payment. The intervening defendant appeals as of right from this decision.

Intervening defendant first asserts that it has a valid defense to payment since it has already paid the full amount of damages required by law.

The pertinent statute provides:

"(1) In respect to applications under this act for payment of damages arising out of motor vehicle accidents occurring in this state on or after January 1, 1966, the secretary shall not pay out of the fund, (a) more than $20,000.00, exclusive of costs, on account of injury to or the death of 1 person, and, subject to such limit for any one person so injured or killed, not more than $40,000.00, exclusive of costs, on account of injury to or the death of 2 or more persons in any one accident; and (b) more than $10,000.00, exclusive of costs, for loss of or damage to property resulting from any one accident.” MCL 257.1123(1); MSA 9.2823(1).

Thus, the Motor Vehicle Accident Claims Fund is not liable for more than $20,000 for the injury or death of any one person. The damages attributable to physical injury may include medical expenses, loss of consortium, etc. See Dillon v Secretary of State, 61 Mich App 588; 233 NW2d 96 (1975). However, once the statutory limit is met with regard to one person, no other person may recover separately from the Fund. Dillon, supra, 591.

In the instant case, a consent judgment awarded $40,000 to the estate of Lottie Ingram for her mental anguish, pain and suffering and loss of earning capacity, $20,000 of which was paid by intervening defendant out of the Fund. Twenty thousand dollars is the compensation limit under existing law for injuries attributable to a single person. Therefore, plaintiff may not recover the $23,799.75 of the damages awarded him individually for his wife’s injuries.

Intervening defendant also claims that it is not liable for the remaining $950 of the total $24,749.75 damages awarded to plaintiff for his own injuries.

Under MCL 257.1122; MSA 9.2822, the Secretary of State may set off against a judgment any amounts received by a party under uninsured. motorist coverage. Plaintiff acknowledges that he has received payment from Allstate Insurance Company in the amount of $1,900. Once this amount is applied against plaintiffs award of $950, the intervening defendant has no further obligation to pay plaintiff.

Of course, the proceeding discussion is superfluous if intervening defendant is barred from asserting its claim based on noncompliance with the objection procedures, for, although the lower court found intervening defendant’s claim meritorious, it held that its protest was precluded by its laxity under MCL 257.1107(2); MSA 9.2807(2).

That statute provides a time limit for the filing of objections to payment.

"(2) Where an application is made under this section, the secretary, at any time within 30 days of the receipt of the application, may give written notice to the applicant of any objection to payment of such judgment or any part of it. Where the secretary gives the notice the applicant may apply to the court entering judgment for a finding or determination in respect of any matter in connection with the application for payment out of the fund.” MCL 257.1107(2); MSA 9.2807(2).

However, MCL 257.1123(2); MSA 9.2823(2), states that the Secretary of State may recover any amount paid from the fund in excess of the authorized amount — here $20,000. This right is not subject to any time limit.

When there are two acts, as here, one general and one specific, the specific statute must be viewed as an exception to the general rule. Flint Board of Education v Williams, 88 Mich App 8, 15-16; 276 NW2d 499 (1979). We hold, therefore, that where an issue of excess payment exists, the Secretary of State is not bound by the 30-day rule but may assert the defense of the Fund’s limited obligation to pay at any time.

Under MCL 257.1123(1); MSA 9.2823(1), the intervening defendant was not obligated to pay anything on the June 7, 1977, judgment in favor of plaintiff, because the intervening defendant had already paid the $20,000 maximum for injuries suffered by any one person. Since this amount is the absolute statutory limit, it did not waive this defense by failing to notify plaintiff of it within 30 days of plaintiff’s application for payment of the judgment. The lower court’s order recognizing a waiver and compelling payment must be reversed.

Reversed and remanded for proceedings consistent with this opinion.

No costs, a public issue being involved.

       "(2) No payment shall be made out of the fund in respect to a claim or judgment for damages or in respect to a judgment against the secretary, of any amount paid or payable by an insurer by reason of the existence of a policy of insurance or of any amount paid or payable by any other person by reason of the existence of any policy, contract, agreement or arrangement, providing for the payment of compensation, indemnity or other benefits.
      "(3) No amount sought to be paid out of the fund shall be sought in lieu of making a claim or receiving a payment that is payable by reason of the existence of a policy of insurance, or in lieu of making a claim or receiving a payment that is payable by reason of the existence of any policy, contract, agreement or arrangement, providing for the payment of compensation, indemnity or other benefits, to which the claimant would be entitled in the absence of this act.” MCL 257.1122; MSA 9.2822.

       "Any amount paid out of the fund in excess of the amount authorized by this section may be recovered by action brought by the secretary.” MCL 257.1123(2); MSA 9.2823(2).


author: Per Curiam. V. J. Brennan, J.

text:
    McMILLAN v McMILLAN
    Docket No. 78-4978.
    Submitted February 7, 1980, at Lansing.
    Decided May 20, 1980.
    Deloris McMillan, hereinafter plaintiff, was awarded custody of her minor child pursuant to a judgment of divorce from Bruce D. McMillan, hereinafter defendant, the child’s father. Subsequently, defendant petitioned the trial court to modify the judgment of divorce by awarding him custody of the minor child. The Ingham Circuit Court, Thomas L. Brown, J., awarded custody of the child to the defendant. Plaintiff appeals. Held:

    1. Child custody cases are considered de novo by the Court of Appeals and the evidence is appraised apart from the trial judge’s findings of fact.
    2. The Court of Appeals must enforce the "clear and convincing evidence” standard where modification of previous child custody orders is at issue.
    3. The trial court did not abuse its discretion in determining that there was clear and convincing evidence warranting a change in custody.
    Affirmed.
    V. J. Brennan, J., dissented. He opined that the trial court failed to find by clear and convincing evidence that the best interests of the child required a change of custody from plaintiff to defendant. He would reverse the order of the trial court.
    Opinion of the Court
    1. Parent and Child — Child Custody — Appeal.
    Child custody cases are considered de novo by the Court of Appeals and the evidence is appraised apart from the trial judge’s findings of fact.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 822.
    [2, 3] 24 Am Jur 2d, Divorce and Separation § 819.
    [4] 24 Am Jur 2d, Divorce and Separation § 779.
    [5] 24 Am Jur 2d, Divorce and Separation § 820 et seq.

      2. Parent and Child — Child Custody — Modification.
    ■ It is the duty of the Court of Appeals to enforce the "clear and convincing evidence” standard of the statute on child custody where modification of previous child custody orders is at issue (MCL 722.27[c]; MSA 25.312[7][c]).
    Dissent by V. J. Brennan, J.
    3. Parent and Child — Child Custody — Evidence Standard — Modification.

      A trial court must find by clear and convincing evidence that a change of custody is in the best interests of the child where a change of custody is ordered.

    4. Parent and Child — Child Custody — Appeal — Standard of Review.

      The Court of Appeals in a custody case is required to affirm the trial court unless it finds that the lower court’s judgment is against the great weight of the evidence, constitutes an abuse of discretion, or results from clear legal error on a major issue (MCL 722.28; MSA 25.312[8]).

    5. Parent and Child — Child Custody — Modification.

      The focus of a trial court’s inquiry in deciding a petition for change of custody of minor children should be concerned with the conditions of the parties at the time of the hearing and not the past conduct of the parties.

    Legal Aid of Central Michigan (by Chris Campbell), for plaintiff.

      Maurice E. Schoenberger, for defendant.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Pursuant to a judgment of divorce, entered on February 20, 1976, plaintiff was awarded custody of the parties’ minor child, born November 24, 1970. Thereafter, on December 16, 1977, defendant petitioned the trial court to modify the judgment of divorce to award him custody of the minor child. Hearings were held on October 2, 3, and 27, and November 21, 1978, following which defendant was awarded custody of the minor child. This appeal followed as of right.

The trial court’s authority to modify previous custody orders stems from MCL 722.27; MSA 25.312(7):

"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from other actions therein or orders or judgments thereof, for the best interests of the child the court may:
"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches the age of 18 years or in exceptional circumstances, until the child reaches majority. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

"Best interests of the child” is defined in MCL 722.23; MSA 25.312(3), which enumerates ten factors to be considered.

This Court’s review of child custody cases is controlled by MCL 722.28; MSA 25.312(8):

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

Child custody cases are considered de novo and the evidence is appraised apart from the trial judge’s findings of fact. Outcalt v Outcalt, 40 Mich App 392, 394; 198 NW2d 779 (1972), Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975).

This Court’s duty is to enforce the "clear and convincing evidence” standard of MCL 722.27(c); MSA 25.312(7)(c), where modification of previous child custody orders is at issue. In Outcalt, supra, the trial court had ordered a change of custody on evidence this Court found was at best evenly balanced. The Court held that because clear and convincing evidence was lacking, the trial court’s findings were against the great weight of the evidence and the trial court’s order was an abuse of discretion.

The trial judge in this case recognized the applicability of the "clear and convincing evidence” standard and made extensive findings of fact, with explicit reference to the factors contained in MCL 722.23; MSA 25.312(3). Our review of his findings persuades us that he did not abuse his discretion in determining that there was clear and convincing evidence warranting a change in custody.

Affirmed.

V. J. Brennan, J.

(dissenting). I must dissent. It is clear from a review of the entire record that the court below failed to apply the proper standard for determining whether a change in custody is appropriate. At the time of the court’s decision, permanent custody was in plaintiff. In order for the court below to change custody from plaintiff to defendant, the trial judge was required to find by clear and convincing evidence that a change of custody was in the best interests of the child, Berman v Berman, 84 Mich App 740; 270 NW2d 680 (1978), Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977). Nowhere in the lower court’s findings was the standard even recognized, let alone applied. The court below considered the factors enumerated in MCL 722.23; MSA 25.312(3) in determining whether the best interests of the child would be served by changing custody. However, the trial judge failed to find by clear and convincing evidence that the best interests of the child required a change of custody. Instead the court found at most some evidence supporting change.

While the court found that both parents loved the child it indicated that the father and stepmother were more demonstrative than the mother and that they "have no inhibitions towards or against displaying their emotions, love and affection openly” which the court stated "the Legislature seems to believe * * * important”. Again, while finding that both parents were able to provide the child with food, clothing, medical care or other remedial care, the trial judge again characterized plaintiff as "not being openly demonstrative”. It goes without saying that the expression of love and affection by hugging and kissing is a matter of individual temperament and not a definitive gauge of the sincerity of love and affection. The court also stated that it was seemingly to the plaintiff’s detriment that the child was not a member of a religious sect. The statute, however, only requires the trial court to determine which parent is best able to continue the religious education of the child if, in fact, the child has a religious affiliation.

This Court is required to review de novo the record in a custody case and to affirm the trial court’s judgment unless we find that it is against the great weight of the evidence, constitutes an abuse of discretion, or results from clear legal error on a major issue, MCL 722.28; MSA 25.312(8), Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), Berman v Berman, supra. Failure to apply the clear and convincing evidence standard was clear legal error on the major issue of burden of proof.

Additionally, review of the trial court’s findings reveals that its decision was based largely on the fact that plaintiff had moved several times within a short time, apparently as. a result of her brief and disastrous marriage, and, furthermore, that a male friend may have spent the night in her apartment. It is the conditions at the time of the hearing which should be the focus of the court’s inquiry, not the past conduct of the parties; see Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). See also Hilbert v Hilbert, 57 Mich App 247; 225 NW2d 697 (1974), Roudabush v Roudabush, 62 Mich App 391; 233 NW2d 596 (1975). The record indicates that plaintiff has established a stable environment for her child. There was no indication of any ongoing illicit conduct which might support a change of custody.

I have reviewed the record of the hearing below and find that the clear and convincing evidence standard was not met by the evidence presented. In my opinion there did not exist one valid reason to change the custody of Tina from her mother to defendant. Accordingly, I would reverse.


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

text:
    PEOPLE v BROWN
    Docket No. 43824.
    Submitted January 16, 1980, at Detroit.
    Decided May 20, 1980.
    Gregory Brown was charged with assault with intent to murder, possession of a firearm during the commission of a felony and felonious assault. At his 1978 trial, evidence was presented that: the defendant entered the house of the complainant and aimed and fired a gun in the direction of the complainant; the complainant chased the defendant from the house to an awaiting automobile where the defendant retrieved a steel pipe with which the defendant struck the complainant on the head; and the blow to the complainant’s head rendered him unconscious and caused cuts, a bruise and an eye injury which, while not requiring the complainant to seek immediate medical attention, caused the complainant to seek medical attention on the evening following the assault. During the trial, in response to a question by defense counsel concerning how many times the complainant had seen the defendant, the complainant responded that he had not seen much of defendant because 'T heard he was out but I didn’t see him”. Defense counsel moved for a mistrial on the basis that the answer of the complainant implied that the defendant had recently been released from incarceration. The Recorder’s Court of Detroit, John P. O’Brien, J., denied the motion for a mistrial. No motion for a curative instruction was made and no such instruction was given. In charging the jury, the trial court instructed the jury as to the lesser included offense of aggravated assault, a misdemeanor, in addition to instructing the jury as to the charged felonies. Neither defense counsel nor the prosecution objected to the fact that the trial court instructed the jury as to aggravated assault. The jury found the defendant not guilty of the charged offenses but found him guilty of the included misdemeanor offense of aggravated assault. Defendant appeals. Held:

      References for Points in Headnotes
    [1] 6 Am Jur 2d, Assault and Battery §§ 3, 5, 48.
    [2] 6 Am Jur 2d, Assault and Battery §§ 92, 107.
    [3] 5 Am Jur 2d, Appeal and Error § 602.
    [4] 5 Am Jur 2d, Appeal and Error §§ 545, 548, 549.
    75 Am Jur 2d, Trial § 876 et seq.

    [5] 5 Am Jur 2d, Appeal and Error §§ 785, 931.

      1. There was sufficient evidence to establish the infliction of serious or aggravated injury element of aggravated assault, since, on the proofs presented, the jury could have properly concluded beyond a reasonable doubt that the injury inflicted was of a serious or aggravated nature. The fact that the injury did not require immediate medical attention is not dispositive of whether there was a serious or aggravated injury, the need for such medical attention being only one factor in the determination of the nature of the injury.
    2. In the absence of any statute, court rule, or case law requiring that expert testimony be used to establish whether an injury is serious or aggravated for the purpose of the aggravated assault statute, the Court of Appeals declines to imply such a requirement.
    3. Since there was no request for a curative instruction to the unsolicited reference which indirectly implied that the defendant had been previously incarcerated, the question was not preserved for appellate review in the absence of a showing of manifest injustice. Manifest injustice has not heen shown.
    4. The trial court erred when it instructed the jury as to aggravated assault, a misdemeanor, because the Supreme Court has ruled as a matter of policy that instructions shall not be given on lesser included misdemeanors of a felony punishable by imprisonment for more than two years. Reversal is not required absent manifest injustice because defendant failed to object to the instruction. There is no manifest injustice because the policy considerations underlying the rule are not present in the instant case.
    Affirmed.
    M. J. Kelly, P.J., concurred in the result reached by the majority. He agrees that no manifest injustice has been shown. He points out that reversal and retrial is not an available alternative and reversal and release ignores the facts, the rights of the people and the victim. He would also affirm.
    Opinion of the Court
    1. Assault and Battery — Evidence — Sufficiency of Evidence •— Aggravated Assault — Serious or Aggravated Injury — Medical Attention — Statutes.
    There was sufficient evidence relative to the element of the infliction of a serious or aggravated injury within the meaning of the aggravated assault statute such that a reasonable person could conclude that that element was established beyond a reasonable doubt where the proofs were that a defendant struck a victim on the head with a steel pipe, rendering the victim unconscious and inflicting cuts, bruises and an eye injury on the victim; the need to seek immediate medical attention is only one factor used in determining whether the element of infliction of a serious or aggravated injury is established (MCL 750.81a; MSA 28.276[1]).
    2. Assault and Battery — Evidence — Aggravated Assault — Serious or Aggravated Injury — Expert Testimony — Statutes.
    Expert testimony is not required to establish the element of a serious or aggravated injury for the purpose of the aggravated assault statute; the jury is normally capable of applying the serious and aggravated injury language of the aggravated assault statute without the need for expert testimony.
    3. Criminal Law — Evidence — Defendant’s Prior Incarceration — Curative Instructions — Manifest Injustice.
    An indirect reference to a defendant’s prior incarceration made in response to a question asked by defense counsel, with respect to which a motion for mistrial but no motion for a curative instruction was made, does not mandate reversal, since, in the absence of a motion for a curative instruction, the issue is not preserved for appellate review absent a showing of manifest injustice.
    4. Assault and Battery — Jury Instructions — Lesser Included Offenses — Misdemeanors — Manifest Injustice.
    Instructing a jury as to the lesser included offense of aggravated assault, a misdemeanor, in a trial for assault with intent to murder and felonious assault, which are felonies, is error; however, in the absence of an objection to such an instruction, appellate review is precluded absent a showing of manifest injustice, and manifest injustice is not shown where the underlying concerns of the rule are not present.
    Concurrence by M. J. Kelly, P. J.
    5. Appeal — Error — Purpose of Rule of Law — Manifest Injustice.

      The Court of Appeals should affirm a criminal conviction where, although the action of the trial court violated the rule of law then in effect, the purpose of the rule was satisñed, the rule was subsequently modified by the Supreme Court and no manifest injustice resulted, and where reversal and retrial is not an

      available alternative and reversal and release ignores the facts, the rights of the people and the victim.

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

      Marvin Skupski, for defendant.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Per Curiam.

Defendant was charged in a three-count information with assault with intent to murder, MCL 750.83; MSA 28.278, possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), and felonious assault, MCL 750.82; MSA 28.277. After a jury trial, he was found not guilty on the first two charges, and on the third, was found guilty of the included offense of aggravated assault, MCL 750.81a; MSA 28.276(1). He was sentenced to one year in prison, and now appeals by right.

The complainant testified that on June 11, 1978, he went to a barbershop. The defendant’s brother Alvin was also there, and the two men engaged in a "tussel”, allegedly over a grudge held by Alvin against the complainant. The fight was broken up by bystanders. Approximately three hours later, the complainant and his sister were alone at his father’s home; and, while they were sitting in the living room, they heard one shot which came from outside. They looked out the window and saw a car traveling down the street in front of the house. Alvin was driving, defendant was in the front seat, and defendant’s pther brother, Karl, and his sister’s boyfriend were in the back seat. The complainant testified that Alvin had his hand sticking out of the window and was holding a gun and that, as the car was still moving, the defendant jumped out and ran up onto the porch of the house and opened the screen door. The complainant testified that, while he was diving towards the front door in order to shut it, defendant stepped into the house, aimed, and fired. The bullet did not strike anyone and landed in the hallway wall. Defendant ran from the porch followed by the complainant, returned to his car, retrieved a steel pipe from the car, and hit the complainant on the head. The blow knocked the complainant unconscious.

Defendant first argues that the prosecution failed to present sufficient evidence of a serious or aggravated injury so as to sustain the burden of proof on a charge of aggravated assault. The statute provides as follows:

"Any person who shall assault another without any weapon and indict serious or aggravated injury upon the person of another without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail or the state prison for a period of not more than 1 year, or fine of $500.00, or both.” (Emphasis added.) MCL 750.81a; MSA 28.276(1).

CJI 17:3:01, which was given to the jury during the trial court’s instructions, further defines "serious or aggravated injury” as "substantial bodily [physical] injury or injury that necessitated immediate medical treatment or caused disfigurement, impairment of health or impairment of any bodily part”. The evidence will be deemed sufficient if it would justify a reasonable person in concluding that the element was established beyond a reasonable doubt. People v Johnson, 83 Mich App 1, 17-18; 268 NW2d 259 (1978).

Several persons testified at trial concerning complainant’s injuries. Their testimony revealed that he had been rendered unconscious by the blow to the head, and that his head hit concrete as he fell. He suffered cuts on his face, an eye injury, and a bruised neck. We hold this evidence was sufficient to justify a reasonable person in concluding that defendant inflicted a serious or aggravated injury on complainant. See People v Chadwick, 301 Mich 654, 656-657; 4 NW2d 45 (1942). While complainant did not seek medical attention until the evening following the attack, the need to seek immediate medical attention is only one factor used in determining whether the element is established.

The defendant also argues that expert testimony is required on the question of whether a serious or aggravated injury has been inflicted. We know of no such requirement, and decline to imply one. Expert testimony is important if it can aid the trier of fact in resolving complex issues beyond the experience of a person not trained in a specific field. See MRE 702. We believe, however, that a jury is normally capable of applying the statutory language involved in the instant case without the need of expert testimony.

During the cross-examination of complainant, in response to a question asked by defense counsel, complainant implied that defendant had recently been released from incarceration. On appeal, defendant argues the trial court erred in not giving a curative instruction. While defendant’s trial counsel did request a mistrial, which was denied, no request for a curative instruction was made. Accordingly, this issue is not preserved for our review absent a showing of manifest injustice. People v Phillips, 61 Mich App 138, 149-151; 232 NW2d 333 (1975). We do not believe manifest injustice will result from our refusal to reach this issue. The response was not solicited, and did not directly convey the fact of defendant’s prior incarceration. Defendant’s reliance on People v Killebrew, 61 Mich App 129; 232 NW2d 329 (1975), lv den 395 Mich 817 (1975), is misplaced, as defense counsel in Killebrew actually requested a curative instruction.

Defendant finally contends that the jury should not have been instructed on the crime of which he was convicted, as instruction on this lesser included offense was barred by People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), where the Supreme Court stated:

"We are establishing a rule, today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.”

The rule is applicable in the instant case, as the charged offense, felonious assault, carries a maximum sentence of four years and the included offense, aggravated assault, is punishable by a maximum sentence of one year.

It is not clear from the record whether the trial court gave the instruction on its own accord, or whether it was requested by one of the parties. Although the record does not establish that the instruction was requested by the defense, it does reveal that defendant made no objection to this specific charge. As a result, appellate review is precluded absent manifest injustice. See, e.g., People v Jones, 92 Mich App 100, 108; 284 NW2d 501 (1979), People v Clay, 91 Mich App 716, 723; 283 NW2d 870 (1979).

We do not believe manifest injustice will result from a failure to reach this issue. In the course of formulating rules to govern lesser included offenses, the Supreme Court adopted the rule in Chamblis as a brake on the power of the jury, in the "exercise of conscience”, to compromise beyond reasonable limits. The rule was to protect both the defendant and the community. An endless procession of lesser included offenses could amount to harassment and could, ultimately, lead to a conviction on a lesser offense bearing no reasonable relation to the charge on which the defendant was originally brought before the court. On the other hand, those who have actually committed a serious offense should be punished as such and should not be allowed the chance to escape with conviction on a charge that is technically a lesser included offense but is logically unrelated to the charged offense.

Applying these policy considerations to the instant case, we believe that the underlying concerns expressed in Chamblis are not present. The offenses of felonious assault and aggravated assault are of the same class, and bear a reasonable relationship to one another. See People v Brown, 87 Mich App 612; 274 NW2d 854 (1978). The Supreme Court has modified the Chamblis rule in cases where the motivating policies of the rule are not offended. People v Miller, 406 Mich 244; 277 NW2d 630 (1979). Additionally, this Court has encouraged the Supreme Court to allow modification of the rule in such circumstances. People v Vasher, 97 Mich App 372; 296 NW2d 30 (1980). While we point out these considerations solely in support of our opinion that defendant has suffered no manifest injustice, we too urge the Supreme Court to reconsider the presently broad sweep of Chamblis.

Affirmed.

M. J. Kelly, P.J.,

(concurring). I will concur in the result reached by the majority because I too am convinced from all the evidence that no manifest injustice resulted.

We have searched the record to determine the context in which the trial court agreed to instruct the jury on aggravated assault. We were at first incredulous that an apparent Chamblis violation could occur more than 2-1/2 years after the Supreme Court established the rule that: "In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.” That rule was released December 18, 1975. The trial court in this case on August 18, 1978, without record explanation, ignored the rule. But the attorney for the defense and the assistant prosecuting attorney also ignored the rule. In fact, appellate defense counsel did not cite the violation in his original brief but did bring it to our attention in a supplemental brief. So far as we can determine the instruction was simply given as a lesser included offense instruction without discussion or objection or comment.

For my part I concur in the result reached by the majority because I am at a loss as to how to handle it otherwise. There is no doubt the defendant has been acquitted on the four year felony charge and on the two year firearm charge. There is no doubt that the record supports his guilt beyond a reasonable doubt of the misdemeanor charge for which the jury found him guilty. Reversal and retrial is not an alternative. Perhaps I am in error in saying that reversal and release ignores the facts, the rights of the people and the victim. It would have been easier if the trial court had given us a reasoned analysis on the subject. Since we cannot conceive that all of the principals were deaf to the detonation caused by Chamblis, we can only assume they were experimenting on their own and perhaps anticipating the "realistic relationship” analysis of the Supreme Court in People v Miller, 406 Mich 244; 277 NW2d 630 (1979).

I concur.

       Sometimes referred to as “assault and infliction of serious injury”.

       The prosecution argues that defendant is attacking his conviction as against the great weight of the evidence. Accordingly, it argues that the issue is not properly preserved for appeal as defendant did not first raise the claim by way of a motion for a new trial. See People v Jagosz, 253 Mich 290; 235 NW 160 (1931), GCR 1963, 527.1(5). We construe defendant’s argument as attacking the sufficiency of the evidence rather than its weight. In other words, defendant is arguing that the prosecution failed to establish an element necessary to the charged ofiense. In these circumstances, no motion for a new trial need be made. Arnsteen v US Equipment Co, 52 Mich App 177; 217 NW2d 61 (1974), lv den 392 Mich 769 (1974), People v Bruce, 35 Mich App 358, 360; 192 NW2d 634 (1971), lv den 387 Mich 788 (1972).

       The question and response were as follows:
      "Q How many times did you see him during the last six months?
      "A I didn’t see him that much, you know, like I heard he was out but I didn’t see him.”

      MCL 750.82; MSA 28.277.

      MCL 750.81a; MSA 28.276(1).


author: Per Curiam.

text:
    SHOCK BROS, INC v MORBARK INDUSTRIES, INC
    Docket No. 44223.
    Submitted April 8, 1980, at Lansing.
    Decided May 20, 1980.
    Rehearing granted July 15, 1980.
    Leave to appeal applied for.
    Defendant, Morbark Industries, Inc., is a Michigan corporation with its principal place of business in Winn, Isabella County, Michigan. Plaintiff, Shock Bros., Inc., is a Michigan corporation with its principal place of business in Warren, Macomb County, Michigan. Plaintiff brought an action in the Macomb Circuit Court for damages and rescission of a sales contract for the sale of a chiparvestor, a machine used in the production of wood chips. Defendant moved for a change of venue to Isabella County. The affidavits filed and hearings held in regard to this motion revealed the following facts. Prior to the making of the contract defendant’s salesmen and representatives called upon plaintiff at its Macomb County offices. Plaintiff executed the contract in Macomb County. The chiparvestor was delivered to plaintiff in Macomb County. From the date of sale on, defendant sent direct mail advertisements to plaintiff and solicited plaintiff’s business. The defects in the chiparvestor were discovered in Macomb County and repairs were effected and damages were incurred in Macomb County. Further, defendant had sold equipment to one other purchaser who happened to he a Macomb County resident, and defendant solicited this customer’s business by mail and telephone. The court, Frank E. Jeanette, J., denied the motion for a change of venue. Defendant appeals by leave granted. Held:

    The grant or denial of a motion to change venue rests in the sound discretion of the trial court and will be reversed on appeal only where there is a plain abuse of that discretion. The court did not abuse its discretion.
    Affirmed.
    Venue — Change of Venue — Discretion — Appeal and Error.
    The grant or denial of a motion to change venue rests in the sound discretion of the trial court and will be reversed on appeal only where there is a plain abuse of that discretion.

      References for Points in Headnote
    [1] 21 Am Jur 2d, Criminal Law § 409 et seq.

    77 Am Jur 2d, Venue §§ 83-85.

      Joseph E. Mihelich, for plaintiff.

      Warner, Norcross & Judd (by Eugene E. Smary), for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Defendant appeals by leave from a denial of its change of venue motion by the Ma-comb County Circuit Court.

Defendant’s registered office and principal place of business are in Isabella County. This action arose out of defendant’s sale and delivery in Ma-comb County of a chiparvestor, a machine for making wood chips. When plaintiff became dissatisfied with the machine and negotiations with defendant proved unproductive, plaintiff filed a complaint in Macomb County Circuit Court seeking damages and rescission of the sales contract. Defendant moved for a change of venue to Isabella County under GCR 1963, 403, alleging that it had no place of business, no buildings, no property or personnel in Macomb County, and that its only contact with Macomb occurred with the single sale of the chiparvestor to plaintiff.

The Macomb County Circuit Court identified the sole issue as whether or not defendant "conducts business” in Macomb County under MCL 600.1621; MSA 27A.1621. It concluded that defendant had continuing business contacts in Macomb County between 1974 and 1977 and denied defendant’s motion. We are now called upon to review this determination.

The venue statute pertinent hereto is MCL 600.1621; MSA 27A.1621:

"Except for the actions listed in sections 1605, 1611, and 1615, venue shall be determined as follows: ¶ (a) The county in which a defendant resides, or has a place of business, or conducts business, or in which the registered office of a defendant corporation is located, is a proper county in which to commence and try an action.”

Thus, the trial court accurately assessed the issue as whether or not defendant conducted business in Macomb County.

We review a trial court’s resolution of venue questions under an abuse of discretion standard. As stated in Hunter v Doe, 61 Mich App 465, 467; 233 NW2d 39 (1975):

"The grant or denial of a motion to change venue rests in the sound discretion of the trial court and will be reversed on appeal only in cases where there is a plain abuse of that discretion.”

See also Three Lakes Ass’n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977). The discretion of the trial court must be exercised with regard to the facts as they existed on the date the action is begun, DesJardin v Lynn, 6 Mich App 439; 149 NW2d 228 (1967), Kubiak v Steen, 51 Mich App 408; 215 NW2d 195 (1974).

The trial court found, from affidavits submitted by the parties, that defendant had continuing business contacts in Macomb County from 1974 through 1977. Specifically, the court noted that defendant authorized salesmen to solicit business from the plaintiff and other local enterprises. Defendant entered into purchase agreements in Ma-comb County, both with plaintiff and with another local business. Defendant delivered machines to Macomb County and periodically serviced them there. From these contacts, the court found sufficient business activity to justify venue. Our independent review of the record and the respective affidavits of the parties leads us to conclude that the trial court did not abuse its discretion by this determination.

Defendant stresses that its sole contact with Macomb County was its contractual relationship with plaintiff, an insubstantial and isolated contact which should not rise to the level of a continuous and systematic contact with the county. We find this argument unpersuasive.

First, defendant’s sales people contacted plaintiff in Macomb County. Defendant then delivered a chiparvestor to plaintiff at plaintiff’s business. This delivery was followed by a series of mailings of literature and promotional material by defendant to plaintiff in Macomb County. When the chiparvestor did not operate to plaintiff’s pleasing, defendant sent service personnel to plaintiff to attempt to correct deficiencies.

Second, the record indicates that another Ma-comb County business owns one of defendant’s chiparvestors. That machine was sold f.o.b. Isabella County. The Macomb County business’s personnel came to Winn, Michigan, and picked up the machine. When the chiparvestor required servicing, said personnel again delivered the machine to Winn, Michigan, and after repairs, picked it up at defendant’s place of business. For venue purposes, then, it can be seen that all of defendant’s contacts with Macomb County seem to be in connection with the sale of its chiparvestors. Thus, the transaction defendant undertook with plaintiff was material and significant to the conduct of defendant’s business. Defendant’s contacts with plaintiff eventually produced a suit based on breach of contract of sale. In light of these circumstances, defendant is hard pressed to rely upon the isolated nature of his contacts in support of his change of venue plea. It would be inequitable indeed for a seller to actively solicit and generate sales in one county then seek to change venue when suits arising from these sales contracts are brought in that county by emphasizing the isolated nature of the contacts.

In view of the foregoing, we find the trial court did not abuse its discretion in denying defendant’s motion.

Affirmed.