text:
    STOVER v MIDWEST TANK & FABRICATION COMPANY, INC.
    Docket No. 77-3593.
    Submitted November 1, 1978, at Grand Rapids.
    Decided December 5, 1978.
    Leave to appeal denied, 406 Mich 926.
    Arthur W. Stover was killed in an airplane crash, and his widow, Kay M. Stover, filed for workmen’s compensation benefits from Midwest Tank & Fabrication Company, Inc., and its insurer, Employers Mutual Casualty Company. At the time of his death, Stover was president and majority stockholder of Midwest Tank. He drew no salary and was not normally present at Midwest’s manufacturing site, but frequently met with the company’s salaried officers on weekends, when he commuted to Michigan from Kentucky where he served as president of another company. The airplane was leased in Midwest’s name, and the pilot was paid by Midwest, where he was employed in other capacities when not piloting or maintaining the airplane. Stover paid the aircraft expenses personally. On the weekend of the crash, Stover was scheduled to attend a meeting at which a major transaction by Midwest was to be finalized, and there was testimony that Stover’s attendance at the meeting was essential. The administrative law judge denied workmen’s compensation benefits, and the Workmen’s Compensation Appeal Board reversed, holding that Stover’s death did arise out of and in the course of his employment, and granted benefits. Midwest Tank and Employers Mutual appeal by leave granted, alleging that the appeal board erred in finding that Stover was an employee of Midwest Tank and that his death arose out of and in the course of his employment. Held:

    1. There is sufficient evidence to support the appeal board’s finding that Stover was an employee of Midwest Tank, and therefore the Court is bound by the board’s conclusion.
    2. Generally, an employee traveling to or from work is not covered by workmen’s compensation, but there are exceptions to the rule where it can be said that the injury was a circumstance of the employment. In this case there was sufficient evidence to satisfy some of the relevant considerations to be applied in making a determination of whether the injury resulting in death was sufficiently work-related to be compensa-ble, and the appeal board did not err in its determination.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 552, 565-569, 631.

       82 Am Jur 2d, Workmen’s Compensation §§ 255-268.

      Affirmed.
    1. Workmen’s Compensation — Appeal Board — Findings of Fact— Support in Record.
    Findings of fact made by the Workmen’s Compensation Appeal Board acting within its powers, in the absence of fraud, are conclusive; if there is evidence in the record to support the board’s findings of fact, they will not be disturbed on appeal.
    2. Workmen’s Compensation — Employee En Route to Work — Circumstance of Employment.
    Generally, an employee traveling to or from work is not covered by workmen’s compensation; however, compensation may be provided where there is a sufficient nexus between the employment and the injury so that it may be said that the injury was a circumstance of the employment.
    3. Workmen’s Compensation — Employee En Route to Work— Work-Relatedness of Injury — Considerations.
    Considerations relevant to the determination of whether an injury to an employee while on the way to work is sufficiently work-related to be compensable are (1) whether the employer paid for or furnished the employee transportation, (2) whether the injury occurred during or between working hours, (3) whether the employer derived a special benefit from the employee’s activities at the time of the injury, and (4) whether the employment subjected the employee to excessive exposure to traffic risks.
    4. Workmen’s Compensation — Appeal Board — Employee En Route to Work — Evidence.
    The Workmen’s Compensation Appeal Board did not err in finding that a corporate executive who was killed in an airplane crash while en route to a meeting on behalf of the corporation was killed in the course of his employment, entitling his widow to benefits, where the evidence substantially satisfies some of the considerations on compensability to be applied in the case of an employee who is injured while traveling to work.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Joseph C. Smith), for plaintiff.

      Lilly, Piatt & Doyle, for defendants.
    Before: Beasley, P.J., and D. E. Holbrook and G. R. Cook, JJ.

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

   D. E. Holbrook, J.

Plaintiff Kay M. Stover seeks worker’s compensation benefits for the death of her husband, Arthur W. Stover, who was killed in the crash of a light aircraft on March 31, 1973, near Niles, Michigan.

Mr. Stover owned 90 per cent of the stock of defendant Midwest Tank and served as that company’s president. He drew no salary and his presence was not normally required at the company’s manufacturing site in Buchanan, Michigan. Stover was usually present the bulk of each week in Owensboro, Kentucky, location of yet another firm which he served as president. He returned to Michigan, where his wife resided and where he had other, additional business interests, on weekends.

Stover used the telephone to keep in contact with the salaried vice-presidents of Midwest Tank during the week. In addition, he frequently met with them in Michigan on weekends. According to the testimony of one of the vice-presidents, Stover contributed valuable financial expertise to the management of Midwest Tank; the two vice-presidents were familiar only with the production and engineering components of Midwest’s operation, and valued Stover’s contribution to the management of Midwest at approximately $400 per week.

The airplane in which Mr. Stover died was leased in the name of Midwest, which collected the insurance proceeds on it after the crash. The pilot’s salary was also paid by Midwest, and his employment contract required that any time not spent piloting or maintaining the airplane be spent at Midwest’s direction. The craft was apparently used primarily by Stover to travel between Michigan and Kentucky. During the week, however, it remained in Niles and was used infrequently for Midwest business or by Midwest personnel for personal business. Nevertheless, Stover made the lease payments and covered the maintenance expenses on the aircraft personally.

On the weekend of the crash, Mr. Stover was scheduled to attend a conference in Michigan to finalize arrangements for a loan which would allow Midwest to purchase its leased plant site. One of Midwest’s vice-presidents testified that Stover’s presence at this meeting was essential and noted that after Stover’s death the transaction fell through. The pilot flew to Owensboro to pick up Stover; together they flew to Nashville, Tennessee, returned to Owensboro, then crashed attempting to land in Niles on their return to Michigan.

Mrs. Stover’s petition for worker’s compensation benefits was denied on April 17, 1975, by the administrative law judge who found that Stover’s "fatal accident did not arise out of and in the course of’ his employment with Midwest Tank. The Workmen’s Compensation Appeal Board reversed this decision on August 15, 1977, and ordered payments of $94 per week for a period not to exceed 500 weeks. Defendants-appellants’ application for leave to appeal to this Court was granted on April 26, 1978. Defendants contend that the board erred in its finding that plaintiffs husband was an employee of Midwest Tank and in its holding that Stover’s death arose out of and in the course of his employment.

It should be noted at the outset that, under MCL

418.861; MSA 17.237(861): "The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive.” If there is evidence in the record to support the board’s findings of fact, they will not be disturbed on appeal. Scroggins v Corning Glass Co, 382 Mich 628; 172 NW2d 367 (1969). As this Court stated in Lemanski v Frimberger Co, 31 Mich App 285, 286-287; 187 NW2d 498 (1971): "Fact findings by the Workmen’s Compensation Appeal Board, supported by proof, are binding on this Court.” Nevertheless, under Howard v Detroit, 377 Mich 102, 105-106; 139 NW2d 677 (1966), it was stated:

"We are not here, however, concerned with eviden-tiary facts, their weight or their credibility. We are concerned with the ultimate conclusion. This finding is, in reality, a legal conclusion based upon the record by application thereto of legal principles established by precedent opinions of this Court.”

In the instant case the evidentiary facts are not in dispute and we must determine if a conclusion of the appeal board on the facts is supportable.

Initially, we must determine then which of the appeal board’s conclusions represent findings of fact, binding on this Court on appeal, and which of the board’s conclusions represent ultimate decisions of the legal issue at hand, "legal inferences from other facts” as it were, subject to review. The board found that "Mr. Stover was an employee of defendant Midwest” and that he "was in the course of his employment at the time of the plane crash”. The board based the latter finding on its determination that "that [fatal] trip was necessitated by the urgency of the scheduled meeting” alluded to above; it also directed attention to the evidence indicating that Stover’s airplane was leased in the defendant’s name, and that Stover’s presence at this meeting was "vital to defendant’s continued existence”. Clearly, the board’s conclusion that Stover’s death arose out of his employment was an ultimate conclusion — a legal inference drawn from other facts. As such, this finding is open to review by our Court.

The board’s determination that Stover was employed by the defendant was based primarily upon the following testimony of one of the defendant’s vice-presidents, which the board adopted in its opinion:

"Q- [by plaintiff’s attorney] Well, did he [Stover] do anything more with the business than merely invest dollars in it?
"A. In an advisory capacity.
"Q. * * * What kind of advice did he provide for the company?
"A. Methods that he thought we should follow in the —in the course of the business. He was much more aware of business than I and, I am sure, Mr. Fisher, also. * * *
"Q. He provided some business expertise, then?
"A. I would suppose you could state it that way, yes.”

In responding to counsel’s suggestion that $400 per week would be a reasonable value for Stover’s services, the vice-president replied:

"If he were an active person in the capacity of the president of this corporation, $400 would not be enough. In the capacity that he acted, the things that he told us we could do, the availability of materials through different areas, I think, yes.”

This testimony, taken together with evidence showing Stover’s participation in the management of defendant’s business through regular weekend conferences and occasional telephone calls, provides strong support for the board’s determination that Stover was a "person in the service of [the defendant], under any contract of hire, express or implied”. MCL 418.161(b); MSA 17.237(161)(b). This finding is not an "ultimate” conclusion open to review under Howard, supra; rather, it is that type of rudimentary finding which is particularly within the province of the appeal board. Since, as noted above, there is evidence to support this finding we are bound by the board’s conclusion that Stover was an employee of the defendant.

We must consider, then, whether the board was correct in its ultimate finding that Stover’s death arose out of and in the course of his employment under MCL 418.301; MSA 17.237(301). The general rule under these circumstances is that an employee traveling to or from work is not covered by workmen’s compensation. Stark v L E Myers Co, 58 Mich App 439; 228 NW2d 411 (1975), lv den 394 Mich 814 (1975), Pappas v Sport Services, Inc, 68 Mich App 423; 243 NW2d 10 (1976), lv den 397 Mich 825 (1976). As pointed out in these cases:

"This general rule however has been repeatedly riddled with exceptions to the extent that it seems to have become an exception to the exceptions. From this consequent erosion of the general rule, it would appear that there is arising through evolution a new rule which compensates where 'there is a sufficient nexus between the employment and the injury’ so that it may be said that the injury 'was a circumstance of the employment’.” (Citations omitted.) Stark, at 442-443.

In order to establish the nexus referred to, the Stark Court extrapolated from previous decisions four

"[c]onsiderations relevant to the ultimate determination of whether an injury to an employee while on the way to work is sufficiently employment-related to be compensable * * * :
"1. Whether employer paid for or furnished employee transportion, * * *
"2. Whether the injury occurred during or between working hours, * * *
"3. Whether the employer derived a special benefit from the employee’s activities at the time of the injury,
"4. Whether the employment subjected the employee to excessive exposure to traffic risks.” (Citations omitted.) Stark, at 443.

Due to Stover’s unusual and irregular working hours, we do not rule upon whether or not the injury occurred "during or between working hours”, nor do we rule that Stover’s employment with Midwest subjected him to excessive travel risks.

The evidence taken in the instant case does indicate, however, that defendant Midwest Tank played a substantial role in furnishing Stover with the subject aircraft. First, Midwest paid the pilot’s salary. Further, the evidence that Midwest utilized the craft for corporate purposes; that the craft was leased in Midwest’s name; that Stover turned the proceeds given him by a personal friend who borrowed the plane over to Midwest; and that Midwest retained the insurance proceeds from the plane for its own use, all indicates that Midwest and not the decedent owned the aircraft in which Stover was killed.

The appeal board also found that deceased’s presence was required at the "urgent” conference due to take place on the weekend of the crash. Despite the fact that Stover generally did make similar trips for personal reasons, there is evidence to support this determination, rendering it conclusive on appeal. This finding indicates that Midwest would indeed have derived a special benefit from Stover’s return to Michigan on that weekend.

Given that the facts of the instant case substantially satisfy two of the relevant considerations set forth in Stark, we hold that the appeal board did not err in its determination of the ultimate question before it: Stover’s injury did arise out of his employment for purposes of the workmen’s compensation act. Therefore, there were no errors of law in the proceeding below and the decision of the Workmen’s Compensation Appeals Board was correct.

We have assumed that Howard, supra, was not overruled sub silentio by subsequent cases such as Johnson v Vibradamp Corp, 381 Mich 388; 162 NW2d 139 (1968), which have applied MCL 418.161 to foreclose review of the board’s determination of apparently "ultimate” conclusions, based on facts in the record. If we are mistaken as to this assumption, our result is, of course, the same.

Affirmed. Costs to plaintiff.

       The fact that Stover dominated the defendant Midwest Tank as a 90 per cent shareholder did not, in the absence of allegations of fraudulent or improper use of the corporate form, preclude him from contracting with Midwest Tank for purposes of the Worker’s Disability Compensation Act. See, Gottlieb v Arrow Door Co, 364 Mich 450; 110 NW2d 767 (1961).


source: Caselaw Access Project

author: R. B. Burns, J.

license: Public Domain

text:
    PEOPLE v MURPHY
    Docket No. 77-3664.
    Submitted October 16, 1978, at Detroit.
    Decided December 5, 1978.
    Leave to appeal applied for.
    Michael G. Murphy was convicted of receiving and concealing stolen property, Recorder’s Court of Detroit, Patricia J. Boyle, J. The defendant appeals, alleging that reversible error occurred when his motion to suppress evidence made prior to trial was denied. Held:

    The evidence should have been suppressed and the information quashed because the evidence was seized in a search conducted without a warrant and no evidence was presented which would justify the search without a warrant.
    Reversed.
    1. Criminal Law — Motions—Evidence—Suppression of Evidence— Appeal and Error — Motion to Suppress.
    The Court of Appeals in review of a denial of a defendant’s motion to suppress evidence made prior to trial is limited to consideration of evidence presented at the preliminary examination and may not consider evidence subsequently presented at trial.
    2. Searches and Seizures — Search Without Warrant — Probable Cause — Exigent Circumstances.
    To sustain the validity of a search without a warrant, the burden rests on the people to demonstrate that the police acted in a reasonable manner, based on probable cause and in response to an exigent circumstance bringing the search under one of the specifically established exceptions to the warrant requirements.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 166. 5 Am Jur 2d, Appeal and Error §§ 728, 736.

       68 Am Jur 2d, Searches and Seizures §§ 37, 41-44, 68-70.

       68 Am Jur 2d, Search and Seizure §§ 8, 20.

       68 Am Jur 2d, Search and Seizure §§ 20, 23, 88, 102, 113.
    Search and seizure: observation of object in "Plain View” — Supreme Court cases. 29 L Ed2d 1067.
    Propriety or lawfulness of seizure, not incident to arrest of papers, documents, letters, books, and records not described in search warrant. 79 ALR2d 1005.

      3. Searches and Seizures — Reasonable Expectation of Privacy.
    A search occurs, for Fourth Amendment purposes, when an individual has a reasonable expectation of privacy in the area searched.
    4. Searches and Seizures — Plain View Doctrine — Search Without Warrant — Justification—Inadvertent Discovery.
    A police officer, in order to apply the plain view doctrine to justify a seizure of evidence without a warrant, must be rightfully in a position from which the evidence is plainly visible, must have prior justification for the intrusion, and must discover the evidence inadvertently.

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

      Seymour Beitner, P.C. (by George C. Dovas), for defendant on appeal.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

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

   R. B. Burns, J.

Defendant was convicted by a jury of receiving and concealing stolen property, MCL 750.535; MSA 28.803. He appeals and we reverse.

Prior to trial defendant moved to suppress unlawfully obtained evidence and to quash the information. The prosecutor stipulated that the trial court could decide the motions solely on the evidence presented at the preliminary examination. The trial court denied the motions. On review of the trial court’s denial of defendant’s motions, we are limited to consideration of evidence presented at the examination, and may not consider evidence subsequently presented at trial. People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971).

Evidence presented at the examination established that furs were stolen from Furs by Ceresnie in Birmingham, Michigan, on September 30, 1976. Sergeant Dennerly, of the Detroit Police Department, was successful in having some of the furs delivered to his police station on October 1, by having an unidentified individual make some telephone calls. Sergeant Dennerly traced one call to 541 Copland, in Detroit, and went there with three other Detroit police officers and a Birmingham police officer. The three other Detroit officers went to the front door, and he and the Birmingham officer went around to the back porch. There were two doors with windows in them, and through one window he saw defendant run downstairs with furs over his arm, and moments later run back upstairs without the furs. He shouted to the officers in front that the furs were in the house, and was shortly let in by one of them. He went to the basement and recovered several furs, which were identified as having been stolen from Furs by Ceresnie. He did not have a search warrant, and did not know how the other officers got into the house.

Defense counsel argued before the magistrate that defendant should not be bound over because no search warrant was obtained, and because Sergeant Dennerly saw defendant with the furs only after trespassing by going to the back porch. The magistrate ruled that there was inadequate evidence to infer that Sergeant Dennerly was improperly on the back porch. Counsel renewed his argument before the trial court, which also ruled that it could not find Sergeant Dennerly was a trespasser. On appeal, plaintiff argues that the furs were within "plain view”.

"To sustain the validity of a warrantless search the burden rests on the people to demonstrate that the police acted in a reasonable manner, based on probable cause and in response to an exigent circumstance bringing the search under one of the specifically established exceptions to the warrant requirement.” People v White, 392 Mich 404, 410; 221 NW2d 357, 359 (1974), cert den, 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975).

In the instant case the magistrate and trial court have shifted the burden of proof from plaintiff to defendant. The issue is not whether defendant established that Sergeant Dennerly was where he should not be, but whether plaintiff has justified Sergeant Dennerly’s presence on the back porch.

For Fourth Amendment purposes, a search occurs when an individual has a reasonable expectation of privacy in the area searched. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967). Depending upon the circumstances, an individual may have a reasonable expectation of privacy in his back yard. See People v Hopko, 79 Mich App 611; 262 NW2d 877 (1977). Certainly many citizens have a reasonable expectation of privacy when they pass before even uncurtained back door windows. Consequently, plaintiff had a burden to elicit facts from which it could be inferred that defendant had no reasonable expectation of privacy when he passed before the window. This plaintiff failed to do.

For the plain view doctrine to apply, the officer must have been rightfully in the position from which evidence was in plain view, the officer must have had prior justification for his intrusion, and the discovery must have been inadvertent. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971) (Stewart, J), People v Harden, 54 Mich App 353, 358; 220 NW2d 785, 787 (1974). Since plaintiff failed to establish that defendant had no reasonable expectation of privacy in the back porch area, it cannot be said that Sergeant Dennerly was rightfully in a position from which the evidence was in plain view. There was no evidence of consent, hot pursuit, or other justification for Sergeant Dennerly to go to the back porch. While Sergeant Dennerly did not testify as to why he went to the back porch, we infer that he may have been anticipating that someone would attempt to escape out the back, possibly with furs. From the record presented for review, there is a strong inference that Sergeant Dennerly decided to engage in a warrantless "raid” on 541 Copland in order to recover stolen furs. In such circumstance, we would be hesitant to characterize the discovery of the furs as inadvertent.

No evidence was presented at the preliminary examination to establish that the officers at the front door received consent to enter and search the premises. The evidence should have been suppressed and the information quashed.

Since defendant’s first issue is dispositive, we do not reach the other issues raised.

Reversed.

       It appears from the trial transcript that, had plaintiff decided to augment the record, substantial issues could have been raised concerning defendant’s standing to raise this issue, consent, and lack of expectation of privacy by defendant. In part because of the woefully inadequate record on this issue, the parties’ briefs on appeal are also inadequate.


author: Beasley, P.J.

text:
    BARTRAND v CHESAPEAKE & OHIO RAILWAY COMPANY
    Docket No. 77-4244.
    Submitted November 1, 1978, at Grand Rapids.
    Decided December 5, 1978.
    Leave to appeal denied, 406 Mich 907.
    Michael Grzyb was killed in an automobile accident. Martha Grzyb, decedent’s widow, retained an attorney, Rawlings, to pursue a wrongful death action against Kenneth Cox, the driver of the other automobile. Mrs. Grzyb indicated to Rawl-ings that Cox was employed by the Chesapeake and Ohio Railway Company. Rawlings settled the claim with Cox’s insurance carrier for $25,000, and a release was executed releasing Kenneth Cox, his wife, and "all other persons, firms or corporations liable or who might be claimed to be liable” for the accident and death. Rawlings never contacted the Chesapeake and Ohio Railway Company to determine if Cox was employed by them. Instead, he altered the release prepared by the insurance carrier so as to make the check payable solely to Mrs. Grzyb, which resulted in the probate court not reviewing or approving the settlement. Then, Rawlings converted the $25,000 to his own use. Although his law firm made good the loss, Rawling’s fraudulent conduct prevented probate review of the settlement where the railroad interest might have been discovered and, in that event, the settlement may not have passed probate scrutiny. The $25,000 was divided between Mrs. Grzyb and the deceased’s workmen’s compensation carrier to the extent of their contribution. Loren Bartrand, administrator of the Estate of Michael A. Grzyb, deceased, and other parties entitled to enforce a wrongful death claim, brought an action against Chesapeake and Ohio Railway in Ottawa Circuit Court. Calvin L. Bosman, J., reformed the release into a covenant not to sue the Coxes, thus permitting further suit against the defendant railroad. Defendant appeals by leave granted. Held:

      References for Points in Headnotes

       53 Am Jur 2d, Master and Servant § 417 et seq.

    Release of (or covenant not to sue) master or servant or principal as affecting liability of servant or agent for tort or vice versa. 92 ALR2d 533.

       Imputation of contributory negligence of servant or agent to master or principal in action by master or principal against another servant or agent for negligence in connection with duties. 57 ALR3d 1226.
    Imputation of servant’s or agent’s contributory negligence to master or principal. 53 ALR3d 664.

       3 Am Jur 2d, Agency §§ 2, 3.
    53 Am Jur 2d, Master and Servant §§ 3, 417.
    Release of (or covenant not to sue) master or servant or principal as affecting liability of servant or agent for tort, or vice versa. 92 ALR2d 533.

       17 Am Jur 2d, Contracts § 143 et seq.

    27 Am Jur 2d, Equity §§ 32-42, 71.
    54 Am Jur 2d, Mistake, Accident or Surprise §§ 16-21.

       66 Am Jur 2d, Release § 14 et seq.

       66 Am Jur 2d, Release §§ 54-57.

      A release, to be sustained, must be fairly and knowingly made. Equitable relief is appropriate where the element of fairness is lacking in the execution of a release. The release was not fairly executed because of the criminal conduct of Mrs. Grzyb’s attorney, along with the lack of probate scrutiny of the release whereby the Chesapeake and Ohio Railway Company’s interest may have been discovered and it might have been required to contribute to the settlement. The presence of these facts surrounding Mrs. Grzyb’s execution of the release provide an appropriate opportunity for equitable relief in the form of reformation of the release into a covenant not to sue and for allowing suit on the merits against the defendant railroad.
    Affirmed.
    1. Master and Servant — Release—Respondeat Superior.
    The release of a servant operates to release a master liable solely under the doctrine of respondeat superior.

    2. Master and Servant — Torts—Negligence—Liability of Employer — Operation of Law.
    The liability of an employer, in an action based on the negligence of an employee, arises only by operation of law where the employer did not participate in the commission of a tort.
    3. Principal and Agent — Covenant Not to Sue.
    A covenant not to sue an agent does not discharge the principal from liability.
    4. Equity — Oppressive Agreements — Fraudulent Agreements— Mutual Mistake — Equitable Relief.
    Equity will strike down without hesitation any agreement resulting from oppression, fraud, mutual mistake of the contracting parties, or other evil.

      5. Release — Fair and Knowing Test.
    Any release, to be sustained, must be fairly and knowingly made.
    6. Release — Fairness—Equitable Relief.
    Equitable relief is appropriate where the element of fairness is lacking in the execution of a release.

      Varnum, Riddering, Wierengo & Christenson, (by Thomas J. Mulder and Jeffrey L. Schad), for plaintiffs.

      Hillman, Baxter & Hammond, (by Stephen D. Turner and Michael D. Wade), for defendant.
    Before: Beasley, P.J., and D. E. Holbrook and G. R. Cook, JJ.

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

   Beasley, P.J.

Defendant appeals from an order of the trial court which denied defendant’s motion for accelerated judgment and reformed a release which purported to relieve defendant of liability into a covenant not to sue an alleged tortfeasor other than defendant.

Following an automobile accident in which Michael Grzyb was killed, Martha Grzyb, decedent’s widow, retained an attorney, Charles Rawl-ings, to pursue a wrongful death action. The vehicle which collided with decedent’s truck was operated by Kenneth Cox. Cox allegedly was travelling in a westerly direction when he crossed the median and struck the truck of decedent which was travelling in the eastbound lane. Mrs. Grzyb testified that she indicated to Rawlings that she believed Cox was employed by defendant and was acting within the scope of his employment. Rawl-ings never contacted defendant with respect to that information, but, rather, negotiated a settlement with Cox’s insurance carrier for $25,000, the limit on Cox’s policy. Pursuant to this settlement, Rawlings forwarded a release, which was signed by the widow, Mrs. Grzyb, the Peoples Bank and Trust Company, executor of decedent’s estate, and Loren Bartrand, plaintiff in this action, who, as the representative of decedent’s insurance carrier, had a lien on any amount recovered up to the amount of funds it had paid. The terms of the release provided for the discharge from liability of Margaret and Kenneth Cox, "their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or who might be claimed to be liable * * * ”.

After the release was executed, Rawlings added language on the face of the release stating, "Such draft or drafts to payable solely to Martha A. Grzyb”. Subsequently, Rawlings forged Mrs. Grzyb’s signature and converted the $25,000 to his personal use. However, the law firm with which he was associated made good the loss. Defendant contributed nothing to the settlement.

Plaintiffs contend that Rawlings’s fraudulent conduct precluded probate review of the settlement in accordance with MCL 702.114; MSA 27.3178(184), and Rawlings was, thus, able to facilitate his conversion of the funds. Mrs. Grzyb testified she had no intention of releasing defendant or anyone other than the Coxes and their heirs. She also testified that she had read the entire release and understood it. The liability of defendant was left up to her attorney according to Mrs. Grzyb.

If the release signed by Mrs. Grzyb is upheld, defendant’s potential liability will be negated. The Michigan courts hold that the release of a servant operates to release a master liable solely under the doctrine of respondeat superior. Liability of the employer arises only by operation of law since he did not participate in the commission of a tort.

However, a covenant not to sue an agent will not discharge the principal from liability. Thus, if the trial court’s decision to reform the release into a covenant not to sue is upheld, the principal is not released and the plaintiff may proceed in a suit against defendant.

Denton v Utley lays the foundation for the broad line of cases concerning the equitable reformation of releases. The trial court’s concern in Denton was with an unforeseen injury that was discovered subsequent to the execution of the release. In reforming the release, the court set forth the "fair and knowing” test:

"In the particular case before us, involving a release, we confront merely a specialized application of the overriding principle that in its accomplishment of its mission, equity will strike down without hesitation any agreement resulting from oppression, fraud, mutual mistake of the contracting parties, or other evil. The cases rest upon this great principle, not upon the minutiae urged. It matters not how sweeping are the words involved. When their content cloaks iniquity they shall be vacated and held for naught. To put it affirmatively, any release, to be sustained, must be 'fairly and knowingly’ made. (Farrington v Harlem Savings Bank, 280 NY 1 [19 NE2d 657]; Keefe, Validity of Releases Executed under Mistake of Fact, 14 Fordham L Rev 135 [1945].)”

The Court, in Smith v Flint School District, refused to reform a release where plaintiffs claimed they were unaware of the employee-employer relationship at the time the release was signed. In Smith, the plaintiffs claimed that the "knowing” portion of the Denton test was violated and, consequently, they were entitled to relief. The Court did not agree and distinguished the unknown defendant case from the unforeseen injury case in Denton:

"Therefore, the reasonable approach would be to consider what the releasor knew or should have known at the time of the signing of the release. In this case, plaintiffs could have discovered the relationship, therefore the instant suit should be barred by the release.”

The Court, in Smith, distinguished the case from Chuby v General Motors Corp which further explains the fair and knowing test set forth in Den-ton, supra. In Chuby, the parties had no way of knowing that the cause of action existed at the time of their release, as the cause of action was retroactively recognized by subsequent case law. Also in Chuby, the mistaken assumption that the decedent had experienced no pain and suffering when the release was executed, deprived two additional plaintiffs of their claims.

Another case which upheld a release of an employer was Malone v SCM Corp. This case may be distinguished from the preceding cases as well as the case at bar in that an offer of settlement was made by the employer which plaintiff rejected. In Malone, plaintiff argued that he did not understand the legal effect of the release. The court, in granting defendant’s motion for accelerated judgment, found no evidence of fraud or misrepresentation at the time plaintiff executed the release.

Centala v Navrude is most analogous to the instant case. The court reformed a release into a covenant not to sue because of the severity of the ward’s injuries; the release inadvertently discharged a party with possible liability without requiring that party to contribute toward the settlement, and the release, under the circumstances, proved not to be in the best interests of the ward.

The court, in Centals, could have relied on the test in Denton, supra, and found that the release violated both the fair and knowing prongs of the test.

Defendant argues that the reformation of a release depends on a showing of fraud, undue influence, duress, misrepresentation, lack of mental capacity, or mistake. The Court, in Denton, indicates otherwise:

"We see, first of all, a wide expanse of the law which has had existence since earliest times: equity’s traditional relief to contracting parties in cases involving fraud and mistake. In our exercise of this power we are frustrated by no form of words employed. If the parties before us have employed artifice and wile, if they have been deluded and betrayed, even, in many cases, by their own fallibility, we are not powerless to relieve them of the consequences.”

The instant case would seem to be an appropriate one for applying the equitable doctrine of reformation. Although Mrs. Grzyb admitted that she read and signed the release, her testimony indicates that she intended only to relieve the Coxes from further liability. We may assume that if Rawlings was truly representing the widow’s interest, he would have pursued the claim against defendant. The deceased earned over a thousand dollars weekly. If Cox was liable and within the scope of his employment, defendants clearly should have been pursued for contribution to the settlement, since the $25,000 paid by Cox’s insurance carrier would be inadequate under those circumstances. We do not find the instant case to resemble Smith, supra, where plaintiff neglected to discover an employee-employer relationship. Mrs. Grzyb knew of the possible relationship of Cox to defendant and passed that information on to Rawl-ings. She placed her trust in her attorney, and he betrayed her.

Finally, but for Rawlings’s criminal conduct, the reasonableness of the settlement would have come before the probate court for approval prior to its distribution. Had the probate court heard the details of the settlement, it is pure speculation as to whether or not the settlement would have been rejected or approved. The court may have discovered that Cox was an employee of defendant and may have rejected the settlement.

We find the fairness element of the fair and knowing test set forth in Denton to be lacking in the execution of the release in the instant case. The facts of the case, the fraud by Rawlings, the lack of probate court scrutiny, the release which found defendant contributing nothing to the settlement, provide an appropriate opportunity for equitable relief.

In so ruling, we recognize that defendant has not in any way been a party to any fraudulent or unfair conduct. But, as indicated, this has not been the issue.

The release will stand as a covenant not to sue the Coxes. The plaintiff may now proceed to trial on the merits.

Affirmed.

        Geib v Slater, 320 Mich 316; 31 NW2d 65 (1948), Witucke v Presque Isle Bank, 68 Mich App 599; 243 NW2d 907 (1976), lv den, 397 Mich 842 (1976), Drinkard v William J Pulte, Inc, 48 Mich App 67; 210 NW2d 137 (1973).

        Geib v Slater, supra.

        Centala v Navrude, 45 Mich App 282; 206 NW2d 544 (1973).

       350 Mich 332; 86 NW2d 537 (1957).

        Denton, supra, p 342.

       80 Mich App 630; 264 NW2d 368 (1978).

        Id. at 634.

       69 Mich App 563; 245 NW2d 134 (1976).

       63 Mich App 11; 233 NW2d 872 (1975).

        Centals, supra.

        Denton, supra, p 338.

       MCL 702.114; MSA 27.3178(184).


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

text:
    PEOPLE v MOORE
    Docket No. 77-4491.
    Submitted August 31, 1978, at Detroit.
    Decided December 5, 1978.
    Ezell Moore was convicted, on his plea of guilty, of two counts of armed robbery and of possession of a firearm while in the commission of a felony, Recorder’s Court of Detroit, Michael J. Conner, J. Defendant appeals the felony-firearm conviction, claiming that it subjects him to double jeopardy. Held:

    The felony-firearm conviction is not permissible because it violates the defendant’s right not to be subjected to double jeopardy. However, because the felony-firearm statute was intended as a sentence-augmenting statute, the defendant’s sentence is upheld.
    Reversed in part, affirmed in part.
    J. H. Gillis, J., dissented. He agrees that the felony-firearm conviction cannot stand, because the defendant is being doubly punished for committing a robbery while armed with a rifle. The evidence used to prove the armed robbery is the identical evidence used to prove the felony-firearm offense. However, because the conviction cannot stand, the punishment prescribed by the statute cannot be imposed for commission of the underlying felony.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 9, 182-193, 546, 548.
    40 Am Jur 2d, Homicide §§ 2, 549 et seq.

    67 Am Jur 2d, Robbery §§ 4, 44, 48.
    Court’s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant. 96 ALR2d 768.
    Construction and application of provision of Omnibus Crime Central and Safe Streets Act of 1968 (18 USCS § 934(c)) that person who uses firearm to commit, or carries firearm unlawfully during commission of, Federal felony, shall be sentenced to term of imprisonment in addition to punishment provided for such felony. 25 ALR FED 678.

       21 Am Jur 2d, Criminal Law §§ 182-193, 546.

       67 Am Jur 2d, Robbery § 75.

      Opinion of the Court
    1. Criminal Law — Armed Robbery — Felony Firearm — Statutes— Sentence Augmentation — Constitutional Law.
    A defendant convicted of an armed robbery which was committed with a firearm may not also be convicted of violation of the statute which proscribes commission of a felony while armed with or possessing a firearm because the felony-firearm conviction constitutes a violation of the defendant’s right not to be subjected to double jeopardy; however, because that statute is intended to be a sentence-augmenting statute, the defendant’s sentence for the armed robbery conviction may be enhanced under the felony-firearm statute (MCL 750.227b, 750.529; MSA 28.424[2], 28.797).
    Dissent by J. H. Gillis, P. J.
    2. Criminal Law — Multiple Convictions — Elements of Offenses— Facts of Case.

      It is necessary, where a defendant has been convicted of more than one offense, to examine both the elements of the crimes involved and the particular facts of the case to determine whether the defendant is being punished twice for the same offense.

    3. Criminal Law — Multiple Punishment — Power of Legislature.

      Punishment for different descriptions of the same offense is beyond the power of the Legislature to impose.

      4. Criminal Law — Armed Robbery — Felony Firearm — Double Punishment — Evidence.

      A defendant’s conviction for violation of the felony-ñrearm statute, arising from an armed robbery, constitutes double punishment where the evidence to prove each element of the armed robbery charge is the identical evidence necessary to prove the felony-ñrearm charge.

    5. Criminal Law — Statutes—Felony-Firearm—Conviction—Punishment.

      The language of the felony-ñrearm statute is clear and unambi-gous and no interpretation is necessary; the Legislature clearly intended to create an offense separate and distinct from the underlying felony and to impose a separate punishment for that offense; where a defendant’s conviction of a felony-ñrearm offense cannot stand, a punishment for that offense cannot be imposed for the commission of the underlying felony (MCL 750.227b; MSA 28.424[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Paul C. Louisell, Assistant Prosecuting Attorney, for the people.

      Daniel J. Blank, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Bashara, JJ.
   Bashara, J.

The majority accepts the facts as set forth in our brother’s dissent. In view of the opinion of Judge Bashara expressed in People v McDowell, 85 Mich App .697; 272 NW2d 576 (1978), and that of Judge Brennan in People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), we set aside the conviction for felony firearm. However, the defendant’s sentence as an augmentation of the penalty for the underlying felony is upheld.

Reversed in part; affirmed in part.

V. J. Brennan, J., concurred.

J. H. Gillis, P.J.

(dissenting). Defendant appeals as of right from his plea-based conviction of two counts of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm while in the commission of a felony, MCL 750.227b; MSA 28.424(2). The charges arose out of a July 12, 1977, incident wherein defendant and two companions entered a bar in the City of Detroit, took wallets from the owner and a customer, and removed some money from the cash register. One of defendant’s companions was armed with a sawed-off rifle.

On appeal, defendant does not dispute his convictions on the armed robbery counts but chai-lenges the "felony-firearm” conviction, raising four issues. I disagree with the majority’s position concerning defendant’s claim that this conviction is barred by principles of double jeopardy.

The guarantee against double jeopardy protects against multiple punishment for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). In Michigan, it is necessary to examine both the elements of the crimes involved and the particular facts of the case to determine whether a defendant is being punished twice for the same offense. In People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), the Court addressed multiple convictions arising out of a single sale of heroin. In that case the defendant was charged with both possession and delivery of heroin. While recognizing that in theory it is possible to do one of these acts without the other, the Court examined the particular facts of the case and concluded that the possession was merely incidental to the sale and did not constitute a separate offense:

"In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severa-ble or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.
"Defendant Stewart may not be 'double punished’ by convicting him of possession, which in this case was a 'necessary’ prerequisite or the sine qua non for the very sale for which he was also convicted.” 400 Mich at 548, 549. See also People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

Examination of the facts in the instant case leads me to conclude that defendant’s conviction on the felony-firearm count cannot stand. It is possible to commit an armed robbery without possessing a firearm. Any dangerous weapon or an article used or fashioned in a manner to lead the victim to reasonably believe it is a dangerous weapon is sufficient to satisfy the "armed” element of this offense. MCL 750.529; MSA 28.797. However, in the instant case possession of a rifle was the gravamen of the robbery armed charges. In effect, defendant is being doubly punished for committing a robbery while armed with a rifle. Punishment for different descriptions of the same offense is beyond the power of the Legislature to impose. See Gore v United States, 357 US 386, 392; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).

Furthermore, under the facts of this case the evidence available to the prosecutor to prove each element of the robbery armed charges is the identical evidence available and necessary to prove the felony-firearm charge. See People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978) (Kaufman, J., dissenting).

The majority upholds defendant’s mandatory 2-year sentence by relying upon People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), which construed the statute to be a sentencing enhancement law. I respectfully disagree with this resolution of the double jeopardy problem.

MCL 750.227b; MSA 28.424(2) reads in pertinent part as follows:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.”

This language is not ambiguous. Where the language of a statute is clear and unambiguous, no interpretation is necessary. People v Carey, 382 Mich 285, 292; 170 NW2d 145 (1969), Acme Messenger Service Co v Unemployment Compensation Comm, 306 Mich 704, 709; 11 NW2d 296 (1943).

The Legislature clearly intended to create an offense separate and distinct from the underlying felony and to impose a separate punishment upon a person guilty of this offense. Having determined that defendant’s conviction cannot stand, I do not think that the punishment prescribed by the statute for its violation can, nevertheless, be imposed for commission of the underlying felony.

I would, therefore, order defendant’s conviction on the felony-firearm charge vacated and the sentence for this offense set aside.


text:
    PEOPLE v STRINGER
    Docket No. 77-5128.
    Submitted August 31, 1978, at Detroit.
    Decided December 5, 1978.
    Horace Stringer was convicted, on his plea of guilty, of assault with intent to commit murder and possession of a firearm while in the commission of a felony, Recorder’s Court of Detroit, Michael J. Connor, J. The defendant appeals and claims double jeopardy. Held:

    The defendant’s conviction on the felony-firearm count is set aside because the double conviction would violate his guarantee against double jeopardy; but his sentence for the assault conviction, as augmented by the felony-firearm statute, is upheld because the statute was intended as one for the augmentation of the penalty.
    Affirmed in part, and reversed in part.
    J. H. Gillis, P.J., dissented. He would hold that the two convictions violated the defendant’s guarantee against double jeopardy and he would reverse the conviction on the felony-firearm count and set aside that portion of the defendant’s sentence because the punishment prescribed by the statute cannot be imposed for conviction of the underlying felony.
    Opinion op the Court
    1. Criminal Law — Constitutional Law — Double Jeopardy — Felony-Firearm — Underlying Felony — Statutes.
    It is a violation of a defendant’s constitutional guarantee against double jeopardy to convict him of an underlying felony and, out of the same incident, convict him of a violation of the felony-firearm statute where the possession of the firearm is a necessary prerequisite to the conviction of the underlying felony; however, since the felony-firearm statute is intended to be a sentence augmenting statute, the defendant’s sentence for the underlying felony conviction may be augmented by the penalty prescribed by the felony-firearm statute even though the felony-firearm conviction must be vacated because of double jeopardy considerations (MCL 750.227[b]; MSA 28.424[2]).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 9, 182-193, 546, 584, 585.
    Court’s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant. 96 ALR2d 768.

       40 Am Jur 2d, Homicide §§ 2, 549 et seq.

      Dissent by J. H. Gillis, P. J.
    2. Criminal Law — Assault with Intent to Commit Murder — Felony-Firearm — Possession of Firearm.

      A defendant may not be convicted of and doubly punished for assault with intent to commit murder and violation of the felony-ñrearm statute arising out of the assault where the possession of the ñrearm was a necessary prerequisite to the conviction of the assault.

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

      Robert E. McCall, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Bashara, JJ.
   Bashara, J.

The majority accepts the facts as set forth in our brother’s dissent. In view of People v McDowell, 85 Mich App 697; 272 NW2d 576 (1978), and People v Blount, 87 Mich App 501; 275 NW2d 21 (1978), we set aside defendant’s felony-firearm conviction, but uphold the sentence as an augmentation of the penalty in the underlying felony.

V. J. Brennan, J., concurred.

J. H. Gillis, P.J.

(dissenting). On September 6, 1977, defendant pled guilty to two charges; assault with intent to commit murder, MCL 750.83; MSA 28.778, and possession of a firearm while in the commission of a felony. MCL 750.227(b); MSA 28.424(2). The facts indicate that on July 24, 1977, defendant, armed with a rifle, chased a woman into an alley and fired several shots at her, one of which inflicted a nonfatal wound.

On appeal, defendant raises three issues. One of these is without merit. The judge committed no reversible error in accepting the guilty pleas. Defendant’s contentions are answered by Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), People v Love, 76 Mich App 379; 256 NW2d 602 (1977), and MCL 771.1; MSA 28.1131.

However, under the facts of this case I do not believe defendant can be convicted of both assault with intent to commit murder and possession of a firearm while in the commission of a felony. The factual basis for both charges is that defendant fired several shots at the victim. Possession of a firearm was a necessary prerequisite to the assault in this case.

The Supreme Court in People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), stated that where possession of heroin is merely incidental to the sale of heroin a person cannot be convicted of both possession of heroin and delivery of heroin. Under the facts of that case, possession "was a 'necessary’ prerequisite or the sine qua non for the very sale for which he was also convicted”. 400 Mich at 549.

Applying a similar rationale to the instant case convinces me that defendant may not be doubly punished by convicting him of both the assault charge and the felony-firearm charge. The assault charge was predicated upon defendant’s chasing the victim with a rifle and firing several shots at her. Thus, possession of the rifle was the sine qua non of the assault charge. The facts necessary to show that defendant committed the assault, without more, showed that defendant violated the felony-firearm statute. See also People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Moore, 87 Mich App 475; 275 NW2d 19 (1978), People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978) (Kaufman, J., dissenting).

I disagree with the majority’s resolution of this double jeopardy problem for the reasons set forth in my dissenting opinion in People v Moore, supra.

I would affirm defendant’s conviction for assault with intent to commit murder but vacate the conviction on the felony-firearm charge and order the sentence imposed for the latter charge set aside.


author: P. J. Marutiak, J. M. J. Kelly, J.

text:
    CANTOR v CANTOR
    Docket No. 78-21.
    Submitted June 16, 1978, at Lansing.
    Decided December 5, 1978.
    Plaintiff, Ruth M. Cantor, and defendant, Samuel Cantor, were divorced in Kentucky in 1968 pursuant to a consent decree which, among other things, provided for periodic alimony and child support payments to plaintiff, that defendant pay a sum certain for plaintiffs attorney fees, that defendant assume a loan secured by certain stock owned by plaintiff, and to indemnify plaintiff for any loss she might sustain due to the operation of defendant’s business. Plaintiff began an action in 1976 to enforce the property settlement and alimony provisions of the divorce decree. The Oakland Circuit Court, Richard D. Kuhn, J., ordered defendant to reimburse plaintiff a sum certain for the value of stock she lost as a result of default on the loan, a sum certain for certain business debts of defendant which she paid and for the expense of her attorney fees and costs in the Kentucky divorce and the cost of her Jewish divorce- and ordered defendant to pay plaintiff $50 per week alimony from the date of filing of the action until plaintiff either died or remarried. All prior alimony arrearages were cancelled. Defendant appeals alleging abuse of discretion, laches, lack of evidence and improper parties. Held:

    1. A final, foreign divorce decree embodying a property settlement agreement executed by the parties and intended to be a full and final settlement of all claims of the parties against each other and the marital estate is entitled to full faith and credit in Michigan.

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation § 948.
    Divorce decrees and full faith and credit — Supreme Court cases. 95 L Ed 559; 96 L Ed 152.

       24 Am Jur 2d, Divorce and Separation § 719.
    Statute of limitations, laches, or acquiescence as defense to action or proceeding for alimony or support of child allowed by court order or decree. 70 ALR2d 1250.

       5 Am Jur 2d, Appeal and Error §§ 839-841.

       20 Am Jur 2d, Costs §§ 79, 80.

       66 Am Jur 2d, References §§ 22-28.

       24 Am Jur 2d, Divorce and Separation §§ 620, 630, 631.

      2. The trial court did not abuse its discretion in failing to recognize laches as a total bar to plaintiffs claims since the nature of the defense of laches is equitable and defendant was not prejudiced by the delay.
    3. The trial court did not err in granting a sum certain to reimburse plaintiff the value of the stock pledged as security for the loan where the value was alleged in the complaint and not denied by defendant and where both parties referred to the stock by its value.
    4. An award of attorney fees creates an enforceable right in ' the party represented.
    5. A party who consents to the taking of testimony before a referee may not submit additional proofs subsequent to the referee’s hearing except by leave of court and evidence so submitted is properly ignored by the court.
    Affirmed.
    M. J. Kelly, J., dissented. He was left with a definite and firm conviction that a mistake had been made in awarding any alimony to plaintiff since her assets totalled $114,000 while the defendant’s consisted of one-half of the $5,000 equity in a home and since their earnings between 1971 and 1975 were only several thousand dollars apart. He also disagreed with the majority holding that defendant’s proffered evidence came too late. He would vacate the alimony order and remand to the trial court to resolve the issue of attorney fees.
    Opinion of the Court
    1. Divorce — Judgments—Foreign Judgments — Full Faith and Credit.
    A final, foreign divorce decree embodying a property settlement agreement executed by the parties and intended to be a full and final settlement of all claims of the parties against each other and the marital estate is entitled to full faith and credit in Michigan.
    2. Divorce — Alimony—Actions to Enforce Accrued Alimony — Defenses — Laches.
    Laches is a bar to an action to recover accrued alimony, however, mere lapse of time without a showing of prejudice will not give rise to the defense of laches.
    3. Appeal and Error — Findings of Fact — Court Rules.
    Findings of fact made by a trial court sitting without a jury may not be overturned on appeal unless they are clearly erroneous (GCR 1963, 517.1).
    4. Action — Parties—Judgment—Award of Attorney Fees — Enforceable Right.
    An award of attorney fees creates an enforceable right in the party represented.
    5. Evidence — Referee’s Hearing — Submission Subsequent to Hearing
    A party who consents to the taking of testimony before a referee may not submit additional proofs subsequent to the referee’s hearing except by leave of court and evidence so submitted is properly ignored by the court.
    Dissent by M. J. Kelly, J.
    6. Appeal and Error — Findings of Fact — Clearly Erroneous Findings.

      The Court of Appeals will set aside the findings of fact of a trial court sitting without a jury where the findings are clearly erroneous; a ñnding is "clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

    7. Divorce — Alimony—Disparity of Financial Resources.

      The disparity in financial resources was sufficient to warrant the termination of a man’s alimony obligations where the woman’s assets totaled $114,000 and the man’s net worth was only one-half of a $5,000 equity in a house and the parties’ annual incomes were only several thousand dollars apart.

      Sommers, Schwartz, Silver & Schwartz (by John H. Shepherd), for plaintiff.

      John M. Litch, for defendant.
    Before: D. E. Holbrook, P.J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   P. J. Marutiak, J.

The parties in the instant action were divorced in a 1968 Kentucky proceeding. The divorce decree divided the parties’ marital estate in accordance with the terms of a consent agreement that they had devised. The consent agreement provided inter alia that defendant pay plaintiff child support and alimony of $100 per week until the oldest of two children became 21 years of age, $80 per week until the remaining child became 21 years old, and then pay $50 a week until plaintiff either died or remarried. Defendant also promised in the consent agreement to assume payment of a loan that was secured by certain stock owned by plaintiff, to indemnify plaintiff for any loss she might sustain due to the operation of defendant’s business, and to pay plaintiff $500 for attorney fees incurred during the divorce proceeding.

Prior to the final judgment of divorce in Kentucky, defendant moved to Michigan. Thereafter, on July 30, 1968, plaintiff filed a petition under the Uniform Reciprocal Enforcement of Support Act, MCL 780.151 et seq.; MSA 25.225(1) et seq., with the Wayne County Circuit Court to secure payment of defendant’s support obligations under the terms of the consent agreement. In an order dated September 13, 1968, defendant was directed to pay plaintiff $30 per week child support for the parties’ one remaining child who was under the age of 18. No mention of defendant’s obligation to pay alimony to plaintiff under the terms of the consent agreement was made in the URESA order.

On April 19, 1976, plaintiff began the instant action in Oakland County Circuit Court by filing a complaint for enforcement of the property settlement and alimony provisions of the Kentucky divorce decree. A referee was assigned to take testimony and evidence in this matter and, following a hearing at which both parties testified, the referee recommended that defendant be relieved of the obligation to pay any past or future alimony; that defendant be ordered to pay plaintiff $8,373.50 for stock that was awarded to plaintiff in the Kentucky judgment, but which had been forfeited when defendant failed to pay a bank loan that he consented to pay in the property settlement agreement and for which the stock was security; that defendant reimburse plaintiff for any loss she may have sustained in paying off business debts that defendant had incurred and promised to pay in the consent agreement; and that defendant reimburse plaintiff for the $150 expense of a Jewish divorce and the $500 in attorney fees and $100 in court costs that stemmed from the Kentucky divorce proceeding.

Both parties filed objections to the referee’s recommendations and stipulated that this action would be submitted to the Oakland County Circuit Court on briefs in letter form with a transcript of the referee’s hearing. The lower court, without taking any additional testimony or evidence, issued its opinion and final order in this action on November 8, 1977. It is undisputed that this order substantially enforces the provisions of the Kentucky divorce decree. It requires defendant to reimburse plaintiff for the $8,373.50 value of the stock that she lost, for the $4,970.20 in business debts of defendant that she paid, and for the expense of the Jewish divorce, the Kentucky attorney fees, and the Kentucky divorce proceeding court costs. The court also ordered defendant to pay plaintiff $50 per week alimony until she either dies or remarries. These alimony payments were to be made retroactive to the date that plaintiff filed her complaint in the instant action; the alimony arrearages accrued during the 9 years from the date of the Kentucky judgment of divorce to the date of plaintiffs complaint were cancelled.

Defendant now appeals and asks us to review several alleged errors of the lower court.

Foremost among the issues raised on appeal by defendant is his contention that the trial court abused its discretion by enforcing the property settlement terms of the Kentucky divorce decree. He argues that Michigan recognizes the doctrine of divisible divorce and that doctrine holds that a Michigan court is not necessarily bound by all incidents of a foreign judgment of divorce. In support of his argument, defendant cites us to the decision of our Supreme Court in Owen v Owen, 389 Mich 117; 205 NW2d 181 (1973), cert den, 414 US 830; 94 S Ct 60; 38 L Ed 2d 64 (1973), reh den, 414 US 1086; 94 S Ct 606; 38 L Ed 2d 491 (1973).

As defendant correctly points out, the Court in Owen did state:

"The fact that plaintiff’s Nevada divorce must be given full faith and credit does not mean however, that it is determinative of all of the incidentals of marriage.” Owen, supra at 121.

However, defendant misconstrues the thrust of this statement by attempting to apply it to a factual situation that is clearly distinguishable from Owen. The Supreme Court noted in Owen that:

"The divorce in Nevada did not purport to adjudicate anything other than the marriage relationship. It does not mention property settlement or support payments. Furthermore, the law in Michigan appears to be that ex parte divorce decisions will not be given full faith and credit with respect to these matters. The policy in Michigan is that the property rights of its citizens will be protected.” (Citation omitted). Owen, supra at 122.

The case at bar involves a foreign divorce decree between parties who, at the time of that divorce, were residents of Kentucky and who had no contacts with Michigan. That divorce decree of a sister state did provide for the division of the marital estate. Further, that decree was not, as in Owen, an ex parte decree but, rather, was one that resulted from proceedings in which both parties fully participated to the extent of signing a consent agreement that provided for the distribution of their marital estate. Thus, Owen does not support defendant’s position.

The question of whether the courts of this state should enforce a foreign divorce decree that divides a marital estate which is totally within the jurisdiction of the foreign court granting the decree is, somewhat, an issue of first impression. However, it would seem that, perhaps excepting cases where enforcement would be against a public policy of this state, such foreign divorce decrees should be entitled to full faith and credit in the courts of this state.

In Mayer v Mayer, 154 Mich 386; 117 NW 890 (1908), the Supreme Court held that where a decree of divorce in another state contained no reservation of power to amend or modify an award of alimony, the award was final and could be enforced in the courts of this state. Similarly, then, other awards of property in a divorce decree that are final should be enforceable in Michigan courts. We look then to Kentucky law to determine whether the divorce decree in the instant case was a final judgment in all of its aspects.

In Kentucky the terms of a property settlement agreement that is embodied in a divorce decree are not subject to later modification by a Kentucky court if the agreement constitutes a property settlement agreement as such, that is, is meant as a final settlement of the property rights and claims of the parties. Richey v Richey, 389 SW2d 914 (Ky App, 1965), Turner v Ewald, 290 Ky 833; 162 SW2d 181 (Ky App, 1942). Kentucky law does provide for certain exceptions to this general rule, however, none of these exceptions apply to the case at bar.

In general, Kentucky law does permit the modification of an award of alimony that is to be paid in installments. Richey v Richey, supra; Renick v Renick, 247 Ky 628; 57 SW2d 663 (Ky App, 1933). However, where a divorce decree incorporates the terms of a full and final property settlement agreement that provides for the payment of alimony as an integral part of the settlement, Kentucky courts are without power to later modify the award of alimony. Richey v Richey, supra, Turner v Ewald, supra, Renick v Renick, supra. The Kentucky rationale for this rule is that the parties’ agreement constitutes a contract for settlement of all claims between them, and, therefore, it would be unjust to permit a party to escape obligations under such a contract and yet avail himself of its benefits.

Thus, if the property settlement agreement executed by the parties in the case at bar was meant to be a full and final settlement of their respective claims against each other and the marital estate, then the divorce decree that embodied it is an unmodifiable final decree that is entitled to enforcement in Michigan courts. We find this to be the case, for by its very terms the agreement purported to be determinative of the parties’ rights in the distribution of their marital estate. Therefore, the lower court properly held that the Kentucky decree of divorce was a final judgment and that its terms could be enforced in a Michigan proceeding.

Having decided that the Kentucky judgment of divorce is enforceable in a Michigan proceeding, we turn to defendant’s arguments relating to certain defenses to specific items in the property settlement provisions of the divorce judgment. Defendant first contends that plaintiff was dilatory in asserting her rights under the Kentucky divorce decree and, therefore, her claim for enforcement is now stale and barred by the doctrine of laches.

Laches has been held in Michigan to bar an action to recover accrued alimony. Rybinski v Rybinski, 333 Mich 592; 53 NW2d 386 (1952). Mere lapse of time, however, without a showing of prejudice will not give rise to the defense of laches. As the Supreme Court stated in Manheim v Urbani, 318 Mich 552, 555; 28 NW2d 907 (1947): ”[I]t must appear the delay resulted in some prejudice to the party asserting laches which would make it inequitable to disregard the lapse of time and incidental consequences”.

The facts, as adduced in the lower court, show that the lapse of time between the date of the divorce decree and plaintiffs attempt to enforce it in Michigan was approximately 9 years. The lower court found that plaintiff was guilty of laches in enforcing her rights under the divorce decree because she did not conduct a diligent search for defendant until just prior to the filing of her complaint in the instant matter. However, the lower court also found that defendant had made no attempt to comply with the terms of the Kentucky judgment of divorce and, further, that he had made his whereabouts unknown for a period of about 4 years.

Upon giving due regard to these opposing equitable considerations, the lower court extinguished plaintiffs right to alimony payments that accrued prior to the date that she filed her complaint in the instant action. Given the equitable nature of the defense of laches, we hold that the trial court did not abuse its discretion when it refused to recognize this defense as a total bar to plaintiffs action. Defendant was in no way prejudiced by the delay of plaintiff in bringing the instant suit to enforce the Kentucky divorce decree. Manheim v Urbani, supra.

Defendant next argues on appeal that it was error for the trial court to award plaintiff the value of certain stock given her in the Kentucky divorce decree but which was lost when defendant failed to pay off a loan for which it was security. Defendant contends that there is no evidence in the lower court record that establishes the value of this stock. We disagree and affirm the lower court’s award.

Plaintiff asserted in a verified complaint that she was awarded certain stock in the Kentucky divorce judgment and that this stock was worth $8,373.50. Defendant did not deny this evaluation of the stock in his answer to plaintiff’s complaint or at the referee’s hearing; rather, he merely argued that he owed no stock to plaintiff.

At the referee’s hearing, plaintiff’s counsel referred to this stock by its value and questioned plaintiff as to where she acquired it. Plaintiff’s answer to this question reasonably can be interpreted to affirm the value of the stock as stated in her attorney’s question.

Findings of fact made by a trial court sitting without a jury may not be overturned on appeal unless they are found to be clearly erroneous. GCR 1963, 517.1. We cannot say that in interpreting plaintiffs answer in the above manner the trial court was clearly erroneous.

Defendant’s final issue on appeal is that the trial court abused its discretion when it ordered defendant to reimburse plaintiff for $500 that she had given her Kentucky attorney after the divorce proceedings when defendant had failed to comply with an order of the Kentucky circuit court to do so. Defendant’s argument on appeal, as it was in the court below, is that every action must be prosecuted in the name of the real party in interest. MCL 600.2041; MSA 27A.2041. Because the Kentucky attorney and not plaintiff was the real party in interest over the attorney fees, plaintiff could not enforce this part of the judgment in a Michigan proceeding without an assignment.

There are two questions involved in our disposition of this issue: Does an award of attorney fees create an enforceable right in an attorney to collect them or in the party represented by that attorney to collect them; and is the taking of evidence closed after the completion of a hearing before a referee, or may a party submit additional evidence to the court prior to the time that the court makes it’s ultimate decision?

A valid foreign judgment for attorney fees awarded in a divorce action ordinarily will be recognized and enforced in other states. In the case at bar, defendant does not argue that the award of attorney fees in the original Kentucky action was not valid.

There appear to be no Michigan or Kentucky cases that discuss the issue of whether a party in a divorce proceeding can enforce an award of attorney fees made to the attorney that represented them. However, there seems to be no valid reason why that party could not enforce the award.

If an award of attorney fees is characterized as being made to the party on behalf of their attorney then, clearly, that party could enforce the award just as they could any judgment. On the other hand, if an award of attorney fees is characterized as being made to the attorney on behalf of the client that was represented by that attorney, then the client should be seen as an intended beneficiary of the award. This is so because the client has a contract with the attorney to pay the fees. To the extent that this contractual obligation is lessened, the client is a beneficiary of the award of attorney fees. By statute, MCL 600.1405; MSA 27A.1405, and by case law, Ireland v Lester, 298 Mich 154; 298 NW 488 (1941), a third party beneficiary to a contract has the same right to enforce that contract as they would have were they a party to it. Therefore, a party who is awarded attorney fees should be able to enforce that award regardless of whether the award is seen as being made to the party on behalf of the attorney or to an attorney on behalf of the client.

Neither party has briefed the issue as to whether additional evidence may be presented to a court prior to the time that the court issues an opinion but subsequent to the closing of a referee’s hearing. Further, there is no Michigan case that disposes of this question.

In the case at bar plaintiff testified at the referee’s hearing that she had paid her Kentucky attorney $500 when defendant failed to comply with an order of the Kentucky circuit court to do so. Defendant did not rebut this assertion of plaintiff at the hearing. Rather, he merely argued that this award was not enforceable. After the hearing, however, defendant presented to the trial court two letters that tended to show that he had paid the Kentucky attorney fees.

We hold that this evidence came too late and that it was proper for the lower court to refuse to consider it. After defendant consented to the taking of evidence before a referee, he could not thereafter submit additional proofs without the leave of the circuit court judge that referred the matter to the referee. GCR 1963, 527.1. Not only did defendant fail to request leave of the court to present additional evidence, he filed objections to the recommendations of the referee and stipulated that this matter be submitted to the circuit court on only briefs in letter form with a transcript of the evidence.

Because, therefore, defendant did not seek its leave to open proofs, the lower court did not abuse its discretion by refusing to consider the evidence submitted by defendant after the referee’s hearing was concluded. To hold otherwise, we would encourage the use of subterfuge in the offering of evidence which an opposing party might have little chance to rebut after the closing of a hearing before a referee.

Affirmed. Plaintiff may assess costs.

D. E. Holbrook, P.J., concurred.

M. J. Kelly, J.

(dissenting). I respectfully dissent from the majority opinion on two of the issues presented: The reinstatement of alimony payments and the award to plaintiff of $500 in attorney fees.

In my view, the trial court erred in reinstating the alimony payments. It is significant that the referee, who personally observed the parties and heard the presentation of the evidence, recommended that "the Defendant be relieved of the obligation to pay any past or future alimony as the Plaintiff is earning enough to support herself at this time”. The circuit court, however, reinstated alimony payments of $50 a week, contrary to the referee’s recommendation, without benefit of any first-hand knowledge of the parties, and without the presentation of any additional evidence. The majority, in passing on this issue, states that the trial court did not abuse its discretion when it refused to recognize defendant’s defense of laches as a total bar to plaintiff’s claim for alimony. I cannot agree.

Under GCR 1963, 517.1, an appellate court will set aside the findings of fact of a trial court sitting without a jury when such findings are clearly erroneous. "[A] finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). The testimony adduced at the referee’s hearing indicated that while the plaintiffs assets total $114,000, the defendant’s net worth is only one-half of a joint $5,000 equity in a home. In addition, the parties’ earnings between 1971 and 1975 were only several thousand dollars apart. I think this disparity in financial resources is sufficient to warrant the termination of defendant’s obligation to pay alimony. See, Anno: Wife’s possession of independent means as affecting her rights to alimony pendente lite, 60 ALR3d 728. In light of these findings and in the absence of any additional judicial hearing, I am left with the definite and firm conviction that a mistake has been committed. I would, therefore, reverse on this issue.

The second point on which I depart from the majority holding is the question of attorney fees. The original divorce judgment required the defendant to pay the award of attorney fees directly to the plaintiff’s attorney, Mr. Carl Helman. No evidence, other than the testimony of the plaintiff, was ever presented establishing that the plaintiff had actually paid Mr. Helman’s fees. On the other hand, defendant had a copy of a letter indicating that he had sent payment to Mr. Helman in 1967. The defendant asserts that this letter was unavailable at the time of the hearing, but that he did attempt to present it to the trial court following the referee’s hearing and prior to that court’s final order.

I do not accept the majority’s conclusion that this evidence came too late and that it was proper for the lower court to refuse to consider it. The reason relied upon by the majority, that the late submission of evidence would deprive the plaintiif of the opportunity to rebut it, is not persuasive in the present case. Here, the testimony of the plaintiff at the referee’s hearing indicated that there was no rebutting evidence; plaintiff presented neither a receipt for the payment nor an assignment of Mr. Helman’s right to collect the $500. Thus, there is no way that the introduction of this letter could have prejudiced the plaintiff.

Therefore, I would remand this case to the trial court to resolve the attorney fee issue and vacate that part of its order reinstating alimony payments.

       Defendant was not ordered to pay child support for the elder of his two children who was over the age of 18 at the time of the URESA order.

       This rule was changed by a 1972 Kentucky statute. In pertinent part, Acts 1972, Ch 182, § 8(6); KRS 403.180(6), a section that specifically deals with the incorporation of settlement agreements in marriage dissolution decrees, provides that such decrees may be modified.
      However, the provisions of this statute apply only to divorce judgments entered after its effective date. See Scott v Scott, 529 SW2d 656, 657 (Ky App 1975) (holding, "[W]e are of the opinion that the 1972 Act cannot be given effect to impair a contractual right to maintenance vested * * * prior to enactment of the statute.”).

        Inter alia, the property settlement agreement provides:
      "15. Except as otherwise herein provided, the plaintiff hereby releases the defendant and his estate from any and all claims of alimony in the event of their divorce and all rights of any and every kind whatsoever in or to any of his property, except as herein provided.
      "16. In the event there is a judgment or decree of divorce entered, this agreement may be made a part of said judgment.”

       Defendant does not assert that plaintiffs claim is barred by either the Michigan or a Kentucky statute of limitations. Therefore, defendant has waived any such possible defense and we do not consider its appropriateness. GCR 1963,116.1.

       Plaintiff does not appeal the order of the lower court that extinguished her right to the accrued alimony. We do not decide, therefore, whether the defense of laches was a bar to the collection of this money.

        See 27B CJS, Divorce, § 373, pp 863, 866.


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

text:
    PEOPLE v BLOUNT
    Docket No. 78-574.
    Submitted October 16, 1978, at Detroit.
    Decided December 5, 1978.
    Ronald Blount was convicted of armed robbery and possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, John Patrick O’Brien, J. The defendant appeals, claiming (1) that the felony-firearm statute violates the constitutional provision which prohibits the amendment of a statute without re-enactment and publication, and (2) that the convictions and consecutive sentences for armed robbery and felony-firearm arising out of a single criminal transaction violate the constitutional prohibition against double jeopardy. Held:

    1. The felony-firearm statute is an act complete within itself, requires reference to no other statute for its meaning, nor does it alter or amend another statute by reference to the other statute’s title. Therefore, the statute is not violative of the constitutional provision which prohibits amendment of a statute without re-enactment and publication.
    2. The felony-firearm statute is to be construed as a sentence enhancement or sentence augmenting statute and the portion of the statute which delineates possession of a firearm during the commission of a felony as a separate and distinct offense is to be construed as inoperable.
    The separate conviction for felony firearm is set aside, but the sentence, as enhanced by the felony-firearm statute, is affirmed.
    J. H. Gillis, P.J., concurred in part and dissented in part. He would hold that the felony-firearm statute clearly creates a separate and distinct felony and, therefore, conviction on both the underlying felony charge and the felony-firearm charge is unconstitutional as a violation of constitutional guarantees against double jeopardy where the underlying offense is a necessarily included lesser offense of the felony-firearm offense. He would further hold that, in the case at bar, the defendant’s two convictions constituted double jeopardy and, therefore, the conviction of and the sentence for the felony-firearm offense must be vacated.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 136, 137.

       21 Am Jur 2d, Criminal Law § 166.

       21 Am Jur 2d, Criminal Law §§ 185,187.
    Conviction of lesser offense as bar to prosecution for greater on new trial. 61 ALR2d 1141.

       73 Am Jur 2d, Statutes §§ 145, 146.

       21 Am Jur 2d, Criminal Law § 579.

      He would affirm the armed robbery conviction and set aside the conviction of and the sentence for felony-firearm.
    Opinion of the Court
    1. Constitutional Law — Criminal Law — Felony-Firearm Statute —Amendment of Statute — Act Complete Within Itself— Statutes.
    The felony-firearm statute is not violative of the provision in the Michigan Constitution which prohibits the amendment of statutes by reference to title only because the felony-firearm statute does not fall within the mischief designed to be remedied by the constitutional provision and because the felony-firearm statute is an act complete within itself, requires reference to no other statute for its meaning and does not alter or amend another statute by reference to the other statute’s title (Const 1963, art 4, § 25; MCL 750.227b; MSA 28.424[2]).
    2. Constitutional Law — Criminal Law — Double Jeopardy — Multiple Punishment — Same Offense.
    The constitutional guarantee against double jeopardy protects against multiple punishment for the same offense.
    3. Constitutional Law — Criminal Law — Double Jeopardy — Separate Convictions — Single Criminal Transaction — Necessarily Lesser Included Offenses.
    Michigan law has construed the constitutional guarantees against double jeopardy to prohibit separate convictions for two offenses arising out of one criminal transaction where one of the offenses is a necessarily lesser included offense of the other.
    4- Statutes — Statutory Construction — Legislative Intent.
    The primary rule governing statutory construction is first and foremost to ascertain and give effect to the manifest intent of the Legislature.
    5. Criminal Law — Felony-Firearm Statute — Statutory Construction — Legislative Intent — Sentence Augmenting Statute— Statutes.
    The felony-firearm statute should be viewed and upheld as a sentencing enhancement and sentence augmenting measure in light of the manifest intent of the Legislature in enacting the statute; the portion of the statute which delineates possession of a firearm during the commission of a felony as a separate and distinct offense should be construed as being inoperable (MCL 750.227b; MSA 28.424[2]).
    Partial Concurrence, Partial Dissent by J. H. Gillis, P.J.
    6. Criminal Law — Felony-Firearm Statute — Legislative Intent-Separate and Distinct Offense — Double Jeopardy.

      The Legislature in enacting the felony-ñrearm statute clearly intended to create an offense, for the possession of a ñrearm in the commission of a felony, separate and distinct from the underlying felony and to impose a separate punishment upon a person guilty of this offense; therefore, since' a defendant’s separate conviction under the felony-ñrearm statute cannot stand, because of double jeopardy considerations, the additional punishment prescribed by the statute for its violation cannot be imposed for violation of the underlying felony.

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

      Robert E. Slameka, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Bash ara, JJ.
   V. J. Brennan, J.

On July 6, 1977, defendant Ronald Blount pled guilty in Recorder’s Court to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, to-wit, armed robbery, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to 4 to 10 years on the armed robbery and 2 years on the felony firearm, such sentences to be served consecutively. Defendant brings this appeal by right, GCR 1963, 806.1.

Defendant raises four issues on appeal, two of which merit discussion.

Defendant argues that the felony-firearm statute is unconstitutional because it amends a large number of statutes without re-enactment and publication, contrary to Const 1963, art 4, § 25 which provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be re-enacted and published at length.”

The Supreme Court in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), cites with approval the rationale behind the foregoing prohibition as enunciated by Justice Cooley in People v Mahaney, 13 Mich 481, 497 (1865), which follows:

"An amendatory act which purported only to insert -certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.”

It is clear that the felony-firearm statute does not fall within "the mischief designed to be remedied by” the constitutional provision. The statute in question is complete within itself, requires reference to no other statute for its meaning, nor does it alter or amend another statute by reference to the other statute’s title. Therefore, the felony-firearm statute is not violative of Michigan Const 1963, art 4, § 25.

The defendant also contends that his convictions and consecutive sentences for armed robbery and felony firearm arising from a single robbery violate constitutional prohibitions against double jeopardy.

Initially we must point out that the guarantee against double jeopardy "protects against multiple punishment for the same offense”. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). Michigan law has construed this protection to prohibit separate convictions for two offenses arising out of one criminal transaction where one is a necessarily lesser included offense of the other. People v Stewart, supra, People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

A literal reading of the felony-firearm statute indicates that the felony must be shown in order to convict on felony firearm. Therefore, the underlying felony is always a necessarily lesser included offense of felony firearm. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). The logical extension of this literal reading would require vacating the conviction on the lesser charge (felony) and affirming the conviction on the higher charge (felony firearm). See People v Stewart, supra, 550, fn 2.

Such a result would require an abdication of our duty to interpret statutes concomitant with the applicable underlying legislative intent. The primary rule governing statutory interpretation is to first and foremost ascertain and give effect to the manifest intent of the Legislature. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).

The underlying legislative intent in regard to the felony firearm statute is to require a mandatory, minimum prison sentence in all felonies and attempted felonies where a firearm was carried or possessed. A review of the legislative history of the enactment indicates that certainty of punishment was the primary concern.

This Court is then faced with the dilemma of applying the literal meaning of the statute to an absurd end or interpreting and thus modifying the statute in light of the accompanying manifest legislative intent.

The propriety of our choosing the latter approach is supported by the Michigan Supreme Court in Williams v Secretary of State, 338 Mich 202, 208; 60 NW2d 910 (1953), where the following maxim is quoted with approval:

" ' "Where the language of a statute, in its ordinary meaning and gramatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence. This is done, sometimes, by giving an unusual meaning to particular words; sometimes by altering their collocation; or by rejecting them altogether; or by interpolating other words; under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention * * * the language of the statute must be given such a construction as will carry that design into effect, even though, in so doing, the exact letter of the law be sacrificed, or though the construction be, indeed, contrary to the letter.” ’ ” (Emphasis supplied.)

In light of the above we construe that portion of the statute inoperable to the effect that it delineates possession of a firearm during the commission of a felony as a separate and distinct offense. We view and uphold the statute as a sentence enhancement and sentence augmenting measure designed to set forth a mandatory minimum term of incarceration on the underlying felony.

The defendant’s separate conviction for felony firearm is set aside; however, in accordance with the above, his sentence is upheld.

Bash ara, J., concurred.

J. H. Gillis, P.J.

(concurring in part, dissenting in part). While I agree with the majority’s position on the first issue and their determination that conviction on the felony-firearm charge violates principles of double jeopardy, I cannot concur in their resolution of this problem.

MCL 750.227b; MSA 28.424(2) reads in pertinent part as follows:

"(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except for violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.”

This language is not ambiguous. The Legislature clearly intended to create an offense separate and distinct from the underlying felony and to impose a separate punishment upon a person guilty of this offense. Having determined that defendant’s conviction cannot stand, I do not think that the punishment prescribed by the statute for its violation can, nevertheless, be imposed for violation of the underlying felony.

I would, therefore, order defendant’s conviction on the felony-firearm charge vacated and the sentence for this offense set aside.

        See my dissenting opinion in People v Moore, 87 Mich App 475; 275 NW2d 19 (1978).

       Where the language of a statute is clear and unambiguous, no interpretation is necessary. People v Carey, 382 Mich 285, 292; 170 NW2d 145 (1969), Acme Messenger Service Co v Unemployment Compensation Comm, 306 Mich 704, 709; 11 NW2d 296 (1943).