author: J. H. Gillis, J.

text:
    CORE v CITY OF TRAVERSE CITY
    Docket No. 77-4496.
    Submitted February 7, 1979, at Grand Rapids.
    Decided April 16, 1979.
    Plaintiff, David M. Core, began working as a firefighter for defendant, Traverse City, in 1965. In 1969, as a result of a reckless driving conviction, plaintiff accumulated 12 points on his driving record and was suspended from driving any departmental vehicles. In 1972, and again in 1973, plaintiff was disciplined by the city for involvement in assault incidents. On October 18, 1975, plaintiff was arrested by a state conservation officer for illegally hunting deer with the aid of an artificial light. Plaintiff initially pled guilty but, when he was discharged by the city, was permitted to withdraw his guilty plea and, upon trial, was acquitted. The Civil Service Commission upheld plaintiffs discharge by the city. Plaintiff appealed the Civil Service Commission’s decision to the Grand Traverse Circuit Court. The court, William R. Brown, J., dismissed plaintiffs appeal. Plaintiff appeals alleging: a) his discharge was not for "just cause” because its basis was unrelated to his duties as a fireman; b) insufficient evidence to support his discharge; c) the commission, in determining punishment, improperly considered evidence of prior misconduct; and d) "failure of good behavior” constitutes an unconstitutionally vague standard for discipline. Held:

    1. A fireman subject to the firemen and policemen civil service act may properly be disciplined for off-duty conduct which demonstrates a disregard for the laws of the state amounting to dishonesty which could be viewed as obstruction of justice and which both interferes with the firemen’s leadership ability and damages the prestige of the department.
    2. A court reviews an administrative decision by examining the record to determine if the decision is supported by competent, material and substantial evidence and only if the decision is not supported by such evidence, or if it is contrary to the law, can the court overturn it.

      Reference for Points in Headnotes

       63 Am Jur 2d, Public Officers and Employees §§ 264, 280

       2 Am Jur 2d, Administrative Law §§ 664, 680-683.

       2 Am Jur 2d, Administrative Law § 417.

       73 Am Jur 2d, Statutes §§ 214r-216.

       73 Am Jur 2d, Statutes § 145 et seq.
       15A Am Jur 2d, Civil Service §§ 88, 89
    63 Am Jur 2d, Public Officers and Employees of § 400.

      3. It was error for the Civil Service Commission to take into account in determining the propriety of punishment of a fireman his prior conviction for reckless driving and suspension from driving departmental vehicles without giving him written notice of that charge as required by statute.

      4. The words "any other failure of good behavior” in the statute providing for disciplining of police and firemen are restricted to misconduct of the same nature as that specifically enumerated and must have some relationship to the position held by the employee.
    5. A policeman or fireman may be suspended without pay prior to a Civil Service Commission hearing, but, in the event the commission’s determination comes more than 30 days after suspension, he is entitled to back pay for the time prior to the commission’s determination, less 30 days.
    Remanded for further proceedings.
    1. Labor Relations — Civil Service — Statutes.
    A fireman subject to the firemen and policemen civil service act may properly be disciplined for off-duty conduct which demonstrates a disregard for the laws of the state amounting to dishonesty which could be viewed as obstruction of justice and which both interferes with the firemen’s leadership ability and damages the prestige of the department (MCL 38.514; MSA 5.3364).
    2. Administrative Law — Review — Civil Service.
    A court reviews an administrative decision by examining the record to determine if the decision is supported by competent, material and substantial evidence and only if the decision is not supported by such evidence, or if it is contrary to the law, can the court overturn the decision of a civil service commission.
    3. Administrative Law — Scope of Review — Findings.
    An appellate court in reviewing an administrative decision examines the evidence not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, regardless of whether that inference would or would not have been drawn by the appellate tribunal.
    4. Labor Relations — Civil Service — Discipline — Statutes.
    It was error for the Civil Service Commission to take into account in determining the propriety of punishment of a fireman his prior conviction for reckless driving and suspension from driving departmental vehicles without giving him written notice of that charge as required by statute (MCL 38.513; MSA 5.3263).
    5. Statutes — Construction —- Ejusdem Generis.
    The rule of statutory construction known as "ejusdem generis’’ is the rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and be construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.
    6. Labor Relations — Civil Service — Statutes — Construction.
    The words "any other failure of good behavior” in the statute providing for disciplining of police and firemen are restricted to misconduct of the same nature as that specifically enumerated and must have some relationship to the position held by the employee (MCL 38.513; MSA 5.3363).
    7. Labor Relations — Civil Service — Back Pay.
    A policeman or fireman may be suspended without pay prior to a Civil Service Commission hearing, but, in the event the commission’s determination comes more than 30 days after suspension, he is entitled to back pay for the time prior to the commission’s determination, less 30 days.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Ronald R. Helveston, for plaintiff.

      Dennis L. Huntley, for defendant.
    Before: D. F. Walsh, P.J., and J. H. Gillis and T. M. Burns, JJ.
   J. H. Gillis, J.

Plaintiff appeals from a decision upholding his discharge from the Traverse City Fire Department. Defendant cross-appeals, claiming the Civil Service Commission improperly awarded plaintiff back pay for the period between his discharge by the city manager and the issuance of the commission’s opinion upholding the discharge.

Plaintiff commenced work as a firefighter for the city in 1965. In 1969 he was convicted of reckless driving which resulted in the accumulation of 12 points on his driving record. He was thereupon suspended from driving all departmental vehicles. A second instance in which discipline was imposed occurred in 1972 when plaintiff was reprimanded for his involvement in an alleged assault at the "Abbey”. In 1973 plaintiff was convicted of assault and battery following an altercation at Bill’s Dills Cafe. He was again disciplined by the city and warned that any future violation of a criminal law or ordinance would result in his discharge.

The incident giving rise to plaintiff’s discharge occurred on the evening of October 18, 1975. Plaintiff was on a weekend maneuver with his Army reserve unit when he and four other men, including his commanding officer, went to purchase some beer. On the way back to their bivouac area they decided to "shine deer”. A conservation officer stopped the pickup truck in which they were riding and all of the men, including plaintiff, were subsequently charged with illegally hunting deer with the aid of an artificial light. MCL 312.10; MSA 13.1339. Plaintiff initially pled guilty to the charge but was subsequently allowed to withdraw his guilty plea and, upon trial, was acquitted.

Plaintiff argues that the discharge was not for "just cause” because the basis for it was unrelated to his duties as a fireman.

There was sufficient evidence from which the commission could conclude that plaintiff had engaged in illegal activity. Plaintiff admitted possessing a rifle and live ammunition while in the vehicle while one of his friends used a spotlight to look for deer. Furthermore, when apprehended by the conservation officer, plaintiff disposed of incriminating evidence by throwing the ammunition in his possession into the bushes. He later conspired to fabricate a false story and lied to the conservation officers until confronted with the previously disposed-of ammunition.

We agree with plaintiff’s contention that, to be removed for cause, there must be some relationship between the charged misconduct and the plaintiff’s position. In Carroll v City Comm of Grand Rapids, 265 Mich 51; 251 NW 381 (1933), the Court, although dealing with the civil service provisions of the Grand Rapids charter, stated the following:

"As noted above, appellant was in office under civil service provisions. He could not be captiously removed on trivial or technical grounds. If he was to be removed at all it must be removal for cause and that which is charged as a reason or justification for removing one-from office for cause must relate to and affect the administration of the office. It must be something which in a material way affects the rights and interests of the public.” Id., p 58.

See also Isaman v Antrim County Supervisors, 348 Mich 84; 81 NW2d 426 (1957).

The provision of the firemen and policemen civil service act under which plaintiff was disciplined reads as follows:

"The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure to good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” (Emphasis supplied.) MCL 38.514; MSA 5.3364.

The last clause clearly manifests an intent by the Legislature that the reason for discipline relate to plaintiff’s duties as a fireman.

This is not to say that a person may not be disciplined for off-duty conduct. In Righter v Adrian Civil Service Comm, 1 Mich App 468, 470; 136 NW2d 718 (1965), a policeman was discharged for visiting a woman "at such hours and in such a manner as to bring discredit upon the police department”. In Kryvicky v Hamtramck Civil Service Comm, 18 Mich App 344; 170 NW2d 915 (1969), a policeman was discharged for creating a disturbance in a bar.

Plaintiff’s actions in the instant case demonstrated at the very least disregard for the laws of this state as well as serious dishonesty which could be veiwed as obstruction of justice. There was also some testimony that plaintiff’s activities had damaged the prestige of the department and could interfere with plaintiff’s leadership abilities. Finally, due to the incident plaintiff missed some work while spending three days in jail.

This evidence was sufficient to conclude that there was a relationship between plaintiff’s misconduct and his employment. Firefighters enter people’s homes under emergency conditions. Hence, public trust in the members of the fire department is essential for its efficient operation. Plaintiffs actions were detrimental to that trust and he could properly be disciplined for them.

Plaintiff, secondly, argues that there was insufficient evidence to support the decision of the civil service commission upholding his discharge.

The nature of a court’s review of the decision of a municipal civil service commission is to determine whether the decision is supported by competent, material and substantial evidence. The court is not to determine whether the probabilities preponderate one way or the other but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. Hunn v Madison Heights, 60 Mich App 326; 230 NW2d 414 (1975), Werner v Macomb County Civil Service Comm, 77 Mich App 533; 258 NW2d 549 (1977).

From our review of the evidence we find sufficient support for the commission’s determination that plaintiff had engaged in the activities for which he was disciplined. Plaintiffs own testimony indicates that he had a gun and live ammunition while his friend shined the light. In addition, he admitted conspiring to fabricate a story and lying to the officers.

Plaintiff also argues that in determining punishment the commission improperly considered evidence of prior misconduct. In Konyha v Mount Clemens Civil Service Comm, 393 Mich 422; 224 NW2d 833 (1975), the Supreme Court held that prior uncharged conduct cannot be considered in determining the propriety of punishment for a current charge of misconduct.

In the instant case the commission considered three prior incidents. The first incident involved plaintiffs conviction for reckless driving and subsequent suspension from driving departmental vehicles. The testimony indicates that plaintiff was not given written notice of the charge. While plaintiff was apparently aware of the driving suspension, the notice provisions of MCL 38.513; MSA 5.3363 were not satisfied. As was stated in Konyha, supra, p 428, "A written statement of [the] charges and the reasons for the disciplinary action must be furnished”. Since the misconduct was not properly charged, the commission erred in taking it into consideration.

The other two prior incidents were not improperly taken into consideration. There is ample evidence that plaintiff was given written notice of the charges and that a copy was timely filed with the civil service commission. Moreover, contrary to plaintiffs argument, we see no reason why the charges and discipline may not be imposed by way of a single letter. Had plaintiff disputed the validity of these charges he had ample recourse under MCL 38.513; MSA 5.3363.

Plaintiff cites Niazy v Utica Civil Service Comm, 45 Mich App 303; 206 NW2d 468 (1973), in support of his position. In that case the plaintiff was given a letter charging him with neglect of duty and discharging him. He requested a hearing. On the day of the hearing, he was furnished with charges of three other incidents of neglect of duty. The Court held that notice on the day of hearing does not comply with MCL 38.513; MSA 5.3363. However, there is no indication that there was any inadequacy in the method by which plaintiff was furnished with notice of the original charge, which was the same method used in the instant case.

Plaintiff’s final claim is that "failure of good behavior” is an unconstitutionally vague standard.

Examination of the context of these words indicates that the rule of construction known as ”ejusdem generis” is applicable. Where, in a statute, general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and be construed as restricted by the particular designation and as including only things of a similar kind, class character or nature as those specifically enumerated. People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975).

While this rule is not to be invoked in every case where general words follow specific words, In re Mosby, 360 Mich 186; 103 NW2d 462 (1960), we believe it has application here. The statute provides:

"[A]ny such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” (Emphasis supplied.) MCL 38.514; MSA 5.3364.

We conclude that "failure of good behavior” is restricted to misconduct of the same nature as that specifically enumerated, and, as noted above, it must have some relationship to the position held by the employee. When so construed, the standard is, therefore, not unconstitutionally vague.

The final issue before us concerns the award of compensation from the date the city manager discharged plaintiff until the date the commission ultimately confirmed that discharge, less 30 days. Relying upon § 13 of the act, the commission held that the city manager was without authority to terminate pay to plaintiff for a period in excess of 30 days. The circuit court upheld the commission’s decision.

This issue was addressed by the Attorney General in a 1976 opinion wherein he stated:

"Section 14 prescribes the manner in which an employee may be discharged from employment, or otherwise disciplined as therein provided. Such sanction must be for cause; the employee must be furnished a written statement of the charges and the reasons for such actions; the statement of charges must be filed within 90 days of the date of violation, with an exception for probationary employees; the employee may file an answer to the charges within 5 days after service; and if the employee demands it, a hearing must be held within 10 days from the filing of the charges. Section 14 expressly provides:
" '* * * and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, * *
"Throughout the section, reference is made to 'the person sought to be removed * * *’ [emphasis supplied]. Finally, the Legislature has expressly included the mandatory provision:
" '* * * Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission the member shall remain in office * * V
"The foregoing language contemplates that, although the appointing authority may initiate charges for removal, discharge, etc., it is the civil service commission which renders the final administrative decision, and the employee remains in his position until such decision is made, by express statutory requirement. The only language in the section that appears to be at variance with the foregoing is as follows:
" '* * * In event that the civil service commission fails to justify the action of the removing officer then the person sought to be removed shall be reinstated with full pay for the entire period during which he may have been prevented from performing his usual employment, * * *.’
"Reference to reinstatement with full pay for a period in which the employee might have been prevented from performing his duties, suggests that the employee has been removed, which appears contrary to the requirement that the employee remain in office. However, the latter requirement is subordinated to a § 13 suspension in the following language:
" '* * * Nothing in this act contained shall limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee or subordinate for a reasonable period, not exceeding 30 days: * * [Emphasis supplied.]
"Such a circumstance was discussed by the Court of Appeals in Hunn, supra. Therefore, notwithstanding the requirement that the employee remain in office, the appointing officer may suspend for a reasonable period up to 30 days.” OAG, 1975-1976, No 4,960, pp 366, 367-368 (April 6, 1976).

As the above opinion indicates, the member remains in office until the decision of the commission is rendered, although he can be suspended without pay for 30 days. Had the Legislature intended to disallow all pay pending the commission’s decision they could have inserted language comparable to that contained in MCL 51.362; MSA 5.1191(112):

"Pending the period between the making of the charges as a basis for removal and the decison thereon by the commission, the member shall remain in office, but shall be suspended from duty without pay.” (Emphasis supplied.)

In light of the Legislature’s failure to insert similar language in the statute under consideration here, we conclude that the Civil Service Commission acted properly in awarding plaintiff back pay for the time prior to the commission’s determination, less 30 days.

Conclusion

Since we are unable to say that the commission would have upheld plaintiffs discharge had they not considered the 1969 reckless driving incident, we must remand the case. The commission is to render its decision without taking that conduct into account.

Remanded for proceedings consistent with this opinion. No costs, a public question being involved.

       “In all cases of reductions, layoff, or suspension of an employee or subordinate, whether appointed for a definite term or otherwise the appointing authority shall furnish such employees or subordinate with a copy of reasons for layoff, reduction, or suspension and his reasons for the same, and give such employee or subordinate a reasonable time in which to make and file an explanation. Such order together with the explanation, if any, of the subordinate shall be filed with the commission: Provided, however, That the employee or subordinate shall be entitled to a hearing before the commission as provided in section 14.”


source: Caselaw Access Project

author: Bashara, J.

license: Public Domain

text:
    DETROIT BOARD OF EDUCATION v CLARKE
    Docket No. 77-4526.
    Submitted January 3, 1979, at Detroit.
    Decided April 16, 1979.
    Plaintiff Detroit Board of Education appeals from a jury verdict, Wayne Circuit Court, Patrick J. Duggan, J., awarding defendant Raymond L. Clarke $7,000 for a parcel of land taken in a condemnation proceeding. Defendant was owner of a two-family flat which was valued at $900 by the board of education. At trial defendant testified that threats were made to condemn his property to build a high school and because of this possibility he began to have difficulty retaining tenants. He attributed this to uncertainty as to whether his property would be taken, residents allowing their property to deteriorate and the effect of houses being torn down. Defendant’s appraiser evaluated the fair market value prior to the high school condemnation threat at $9,500. This was based on a survey of the area, his knowledge of the neighborhood and city records. He testified that the property had experienced accelerated condemnation blight which had been caused by activities of the board of education. Plaintiff contends that there was not sufficient evidence presented of activities on its part to justify the jury award. Held:

    1. A diminution in value or partial destruction of property can constitute a taking of private property for public use and this may be accomplished by deliberate acts of the condemning authority.
    2. The determination of the date of taking and ascertainment of value is a question of fact for a jury and it is not within the province of the Court of Appeals to review questions of fact other than to ascertain the presence of evidence to support the verdict. A verdict will not be disturbed so long as it is within the fair range of the testimony. Sufficient facts were elicited at trial to support the jury’s award of $7,000 to defendant.

      References for Points in Headnotes

       26 Am Jur 2d, Eminent Domain §§ 25, 26, 170.

       27 Am Jur 2d, Eminent Domain § 266.

       26 Am Jur 2d, Eminent Domain §§ 131, 152.

       26 Am Jur 2d, Eminent Domain §§ 157, 158.

       27 Am Jur 2d, Eminent Domain § 169.

       27 Am Jur 2d, Eminent Domain §§ 408, 506.

       4 Am Jur 2d, Appeal and Error § 2.

      Affirmed.
    1. Eminent Domain — Condemnation — Public Use — Due Process — Just Compensation.
    Private property may not be taken for public use without due process and just compensation.
    2. Eminent Domain •— Condemnation — Public Use — Just Compensation — Unjust Enrichment.
    Just compensation for the taking of private property for public use is that which puts the injured party in the same position as he would have been had the injury not occurred, it should not enrich the individual at public expense nor the public at the individual’s expense.
    3. Eminent Domain — Condemnation Proceedings — Time of Taking — Special Situations — Governmental Actions — De Facto Taking.
    The value given for condemned land is determined at the time of taking and a taking generally occurs when a verdict is confirmed, the deed executed, and the award paid; however, there are special situations where governmental actions amount to a de facto taking of private property prior to an actual eminent domain proceeding.
    4. Eminent Domain — Condemnation Proceedings — Private Property — Taking — Invasion of Property — Diminution in Value — Partial Destruction — Property Rights.
    There is no precise formula or specific method for determining what constitutes a taking of private property in condemnation proceedings; the term taking is not construed narrowly; an actual physical invasion of property is not necessary because a diminution in value or partial destruction of the property can constitute a taking; therefore, the issue generally becomes, what activities on the part of the condemning authority can be considered as depriving an owner of his property rights.
    5. Eminent Domain — Condemnation — Private Property — Public Use — Reduction in Value.
    Private property, which may be condemned for public use, should not be reduced in value by deliberate acts such as a published threat of condemnation, filing of lis pendens, mailing letters and circulars concerning a public project to area residents, refusing to issue building permits for improvements coupled with intense building violation inspection, reduction in services and piecemeal condemnation and razing.
    6. Eminent Domain — Condemnation — Private Property — Public Use — Threats of Condemnation — Affirmative Action.
    Mere promulgation and publicizing of plans is insufficient to constitute a taking of private property for public use in Michigan; threats of condemnation must be coupled with affirmative action such as unreasonable delay or oppressive conduct to the neighborhood as a whole and in determining whether an unlawful taking has occurred, threats of condemnation and any action in furtherance thereof should be considered cumulatively.
    7. Eminent Domain — Condemnation — Private Property —
    Public Use — Date of Taking — Value — Jury Question. The determination of the date of taking private property for public use and the ascertainment of value is a question for the jury.
    8. Appeal and Error — Questions of Fact — Verdicts — Support of the Evidence.
    It is not within the province of the Court of Appeals to review questions of fact other than to ascertain the presence of evidence that can support a verdict and the verdict will not be disturbed so long as it is within the fair range of the testimony.

      Gellert A. Seel, P.C., for plaintiff.

      Charles E. Fonville, for defendant.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   Bashara, J.

Plaintiff appeals from a jury verdict awarding defendant $7,000 for a parcel of land taken in a condemnation proceeding in 1977. Defendant has already been paid the full amount of the jury award. The only issue to merit discussion is the manner in which value should be assigned property in condemnation actions of this nature in the future.

Defendant was the owner of a two-family income flat. Testimony at trial indicated that defendant and other neighborhood residents became aware of the board of education’s intention to acquire land for Kettering High School in 1962. An inquiry as to the extent of property to be taken resulted in defendant being shown a general print of proposed construction which included his property.

In 1965, defendant again made inquiries of the board and was told his property could be taken at any time. Some property in the area was acquired at that time.

In 1970, defendant was told that his property was included in an alternate plan but there was no planned date for purchase. In 1972, in response to further inquiries, defendant received a letter indicating that his parcel of land fell outside the area of the designated site.

Defendant began to have difficulty retaining tenants in 1970. He attributed this to uncertainty as to what property would be taken, residents allowing their property to deteriorate and the effect of houses being torn down. Defendant boarded his house up in 1973 and it was demolished soon after.

The property was valued at $900 by the board of education. An appraiser testifying for defendant evaluated the fair market value of the property had the house not been torn down as $9,500. This was based on his survey of the area in 1977, his knowledge of the neighborhood, and city records. He testified that the property had experienced accelerated condemnation blight (distinguished from normal urban blight), and that it had been caused by the activities of the board of education.

Plaintiff contends that there was not sufficient evidence presented of activities on its part to justify the jury award.

Private property may not be taken for public use without due process of law and just compensation. Thom v State Highway Comm’r, 376 Mich 608, 613; 138 NW2d 322 (1965). Just compensation is that which puts the injured party in the same position as he would have been had the injury not occurred. It should not enrich the individual at public expense, nor the public at the individual’s expense. The value given for the condemned land is determined at the time of the taking. State Highway Comm’r v Eilender, 362 Mich 697, 699; 108 NW2d 755 (1961).

A taking generally occurs when a verdict is confirmed, the deed executed, and the award paid. However, there are special situations where governmental actions amount to a "de facto” taking of private property prior to an actual eminent domain proceeding. Foster v Detroit, 254 F Supp 655, 662 (ED Mich, 1966).

The term "taking” is not to be construed in a narrow sense. There need be no actual physical invasion of the property. A diminution in value or partial destruction can constitute a "taking”. Thom, supra, at 613-614, Clinton Street Greater Bethlehem Church v Detroit, 484 F2d 185, 188 (CA 6, 1973).

The issue becomes what activities on the part of the condemning authority can be considered as depriving an owner of his property rights. There is no precise formula or specific method for this determination.

The Michigan Supreme Court has held that a city may not by deliberate acts reduce the value of private property. In re Urban Renewal, Elmwood Park Project, 376 Mich 311, 317; 136 NW2d 896 (1965).

Actions found to be deliberate include the filing of lis pendens, the published threat of condemnation, mailing letters and circulars concerning the project to area residents, refusing to issue building permits for improvements coupled with intense building violation inspection, reductions in city services to the area and protracted delay and piecemeal condemnation and razing. In re Urban Renewal, Elmwood Park, supra, Foster v Detroit, supra, Madison Realty Co v Detroit, 315 F Supp 367 (ED Mich, 1970).

However, more than mere promulgation and publicizing of plans is needed in Michigan to constitute a taking. Threats must be coupled with affirmative action such as unreasonable delay or oppressive conduct directed to the neighborhood as a whole. Muskegon v DeVries, 59 Mich App 415, 419; 229 NW2d 479 (1975), Holloway Citizens Committee v Genesee County, 38 Mich App 317, 321; 196 NW2d 484 (1972).

Threats of condemnation and any action in furtherance thereof should be considered cumulatively in determining whether an unlawful taking has occurred. Ellis v Grand Rapids, 257 F Supp 564 (WD Mich, 1966). See also Cleveland v Carcione, 118 Ohio App 525; 190 NE2d 52 (1963).

The determination of the date of taking and the ascertainment of value is a question of fact for the jury. Detroit v Sherman, 68 Mich App 494, 498; 242 NW2d 818 (1976), In re Urban Renewal, Elmwood Park, supra, at 318.

It is not within the province of this Court to review questions of fact other than to ascertain the presence of evidence that can support the verdict. A verdict will not be disturbed so long as it is within the fair range of the testimony. Detroit v Sherman, supra, St Clair Shores v Conley, 350 Mich 458, 463-4; 86 NW2d 271 (1957). In this case, sufficient facts were elicited to support the jury’s award.

Affirmed, costs to defendant.

       The United States Supreme Court has not yet adopted a definitive stance on the time and manner of awarding just compensation when precondemnation delay is involved. However, the Court held in United States v Virginia Electric & Power Co, 365 US 624; 81 S Ct 784; 5 L Ed 2d 838 (1961), that the Court must exclude any depreciation in value caused by the prospective taking once the government "was committed” to the project. The opinion seemed to indicate that mere threats could in fact depreciate property values.


author: M. J. Kelly, J.

text:
    PEOPLE v MANN
    Docket No. 77-4699.
    Submitted January 3, 1979, at Grand Rapids.
    Decided April 16, 1979.
    Robert L. Mann was convicted of assault with intent to rob and steal being armed and possession of a firearm during the commission of a felony in Kalamazoo Circuit Court, Marjorie Lee Luna, J. On appeal, defendant claims the trial court erred by refusing to grant him a Walker hearing concerning the voluntariness of several statements he made to the police, that the complaining witness’s in-court identification was tainted by an unnecessarily suggestive confrontation at his preliminary examination and it was error to deny him a lineup. Held:

    1. Defendant was convicted twice on counts involving identical proofs; therefore, he was the victim of double jeopardy and his resulting multiple conviction and multiple punishment violates both the state and Federal constitutions.
    2. A Walker hearing is a factual determination of the voluntariness of statements made to police officers. The voluntariness of defendant’s statements had been determined in another case pending against him by a Walker hearing and is binding on all persons under the doctrine of collateral estoppel. Defendant cannot relitigate this issue.
    3. Defendant failed to object to the in-court identification by the complaining witness and made no showing of manifest injustice; therefore, this issue was not saved for review.
    4. A criminal defendant in Michigan has no constitutional or statutory right to a pretrial lineup.
    Conviction for assault with intent to rob and steal being armed affirmed; conviction for possession of firearm during the commission of a felony reversed.
    R. B. Burns, J., would hold that both convictions, assault with intent to rob and steal being armed and possession of a firearm during the commission of a felony, should be affirmed.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 166, 182, 183.

       46 Am Jur 2d, Judgments § 397.

       5 Am Jur 2d, Appeal and Error § 545 et seq.

    21 Am Jur 2d, Criminal Law §§ 368, 369.
    29 Am Jur 2d, Evidence §§ 371-373.

      Opinion of the Court
    1. Criminal Law — Double Jeopardy — Separate Counts — Identical Proofs — Constitutional Law.
    The prohibition against double jeopardy embodied in the United States and Michigan Constitutions is violated where a defendant is convicted twice on separate counts involving identical proofs; the resulting multiple conviction and multiple punishment cannot be constitutionally condoned (US Const, Am V, Const 1963, art 1, § 15).
    Opinion of R. B. Burns, J.
    2. Criminal Law — Walker Hearing — Voluntariness of Statements — Collateral Estoppel.
    Collateral estoppel forbids a defendant from relitigating the issue of the voluntariness of several statements made to police officers where in another case pending against him, a Walker hearing was held, and these same statements were determined to be voluntary.
    3. Criminal Law — Witnesses — Identification — Independent Basis — Failure to Object — Appeal and Error.
    Generally, failure to object to an identification procedure precludes review unless there is a showing of manifest injustice; a defendant fails to preserve this issue for review where he never sought to suppress a subsequent identification made at trial, factors going to the quality of that identification were extensively developed at trial, and application of those factors to the standards for the determination of whether there existed an independent basis for identification indicated an existence of negative and positive factors with no evident preponderance.
    4. Criminal Law — Pretrial Lineups — Constitutional Law — Statutory Rights.
    A criminal defendant has no constitutional or statutory right to a pretrial lineup.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Chief, Appellate Division, for the people.

      James D. Hills, for defendant.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and M. J. Kelly, JJ.
   M. J. Kelly, J.

We agree with Judge Burns’ opinion and with the affirmance of the conviction for assault with intent to rob and steal being armed, but we are of the opinion that reversal of the felony-firearm conviction is mandated for the reasons stated in Judge Kaufman’s dissent in People v Drake Johnson, 85 Mich App 752; 272 NW2d 599 (1978).

D. E. Holbrook, Jr., P.J., concurs.

R. B. Burns, J. Defendant was convicted by a jury of assault with intent to rob and steal being armed, MCL 750.89; MSA 28.284, and possession of a firearm during the commission of a felony, MCL 750.227(b); MSA 28.424(2). Defendant appeals and we affirm.

Beryle Harris, the complaining witness, testified that he was a truck driver, and forced off 1-94 by a blizzard. He checked into a motel and was assigned to the ground floor. Returning to his room from a nearby restaurant, he observed a black male get out of an automobile and walk in front of him along the walk. As the witness approached his room the person turned around and walked right up to the witness. The witness said "hi” and the man said "open the door”. At this time the man was within two feet of the witness and the witness looked right at him. The witness then said "what?” and the man repeated "open the door”. The man had a gun in his right hand. The witness turned towards the door and the man came up behind him, pushing, and said "hurry up and open the door or I will blast you”. The witness inserted the key in the door and just as he opened the door he wheeled around and hit the man in the mouth, knocking him across the driveway. After the man stopped rolling he got up on his knees and shot the witness in the left shoulder.

The witness testified that he got a good look at the man when he faced him in front of the door and when the man was on his knees just prior to the shot. The witness especially noticed the man’s eyes. The witness identified defendant as the man who shot him.

Defendant first argues that the trial court erred by refusing to grant him a Walker hearing in this case. Defendant had made several statements to the police. In another case pending against defendant, a Walker hearing was held, and the same statements determined to be voluntary. The trial court in this case correctly ruled that collateral estoppel forbids defendant from relitigating this issue. People v Gray, 393 Mich 1; 222 NW2d 515 (1974).

Defendant next argues that the complaining witness’s in-court identification was tainted by an unnecessarily suggestive confrontation at the preliminary examination. See People v Solomon, 391 Mich 767; 214 NW2d 60 (1974). At the preliminary examination, the witness saw defendant shackled and in the company of police officers. Defendant was the only black person in the room, was seated next to defense counsel, and responded affirmatively when the magistrate asked "Is Robert Lee Mann present?”.

Although defendant moved to strike the identification at the preliminary examination, defendant never sought to suppress the subsequent identification made at trial. Factors going to the quality of that identification were extensively developed at trial. Application of those factors to the standards for the determination of whether there existed an independent basis for identification, People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), indicates there exist negative and positive factors with no evident preponderance. Ordinarily, failure to object to an identification procedure precludes review. See, e.g., People v Moss, 397 Mich 69; 243 NW2d 254 (1976). Since we detect no manifest injustice, we find defendant has failed to preserve this issue for review. We express no opinion as to whether the prior confrontation was unnecessarily suggestive.

Defendant also complains that it was error to deny him a lineup. The complaining witness was in a hospital at the time defendant was arrested, and left the area as soon as he was released from the hospital. Defendant was not entitled to a lineup as a matter of right. People v Farley, 75 Mich App 236, 238; 254 NW2d 853, 855 (1977). There was no error.

Defendant’s other claims have been considered, but do not merit discussion.

Affirmed.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


author: D. C. Riley, J.

text:
    PEOPLE v PERRYMAN
    Docket No. 78-194.
    Submitted February 13, 1979, at Detroit.
    Decided April 16, 1979.
    Defendant Harold Perryman was convicted of breaking and entering an unoccupied dwelling with intent to commit a larceny, Recorder’s Court of Detroit, George W. Crockett, III, J. During the trial, defense counsel sought to elicit from the police officer then testifying the nature of an exculpatory statement made by defendant prior to arraignment. The trial court excluded from evidence the testimony by the officer relative to defendant’s exculpatory statement on the basis that such evidence was barred by the statute requiring that one charged with a felony must be arraigned without undue delay. The trial court, after an evidentiary hearing and over defense counsel’s objection, admitted the testimony of a police officer who, with the aid of a tracking dog, had tracked defendant from the scene of the crime to a nearby park. No special instruction was given to the jury relative to the tracking dog evidence. At sentencing, after sentence had been imposed and in response to defense counsel’s request that the court reconsider the sentence imposed, the sentencing court mentioned defendant’s maintenance of innocence and lack of remorse. Defendant appealed. Held:

    1. The statute requiring one charged with a felony to be arraigned without undue delay does not preclude defendant from eliciting testimony at his trial relative to an exculpatory statement made by defendant prior to arraignment.
    2. The trial court’s assigning of the wrong reason for exclusion of testimony does not result in reversible error if the trial court reached the right result.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 452.
    29 Am Jur 2d, Evidence §§ 493-496, 610-614, 621, 622.

       4 Am Jur 2d, Appeal and Error § 521.

       5 Am Jur 2d, Appeal and Error § 545 et seq.

       29 Am Jur 2d, Evidence §§ 378, 379.
    Evidence of trailing by dogs in criminal cases. 18 ALR3d 1221.

       75 Am Jur 2d, Trial §§ 577, 578, 682, 906, 909.

       30 Am Jur 2d, Evidence § 1146.

       21 Am Jur 2d, Criminal Law §§ 525, 533 et seq.

      3. Questions as to the scientific validity and constitutional propriety of tracking dog evidence will not be considered on appeal in the absence of an objection at trial.
    4. Tracking dog evidence is admissible upon the establishing of the necessary foundation.
    5. The failure to request a cautionary instruction on the use of tracking dog evidence or to object to the jury charge as given bars reversal on appeal in the absence of a showing of manifest injustice; however, such cautionary instructions on the use of tracking dog evidence should be given by trial courts in all future cases, even in the absence of a request by counsel.
    6. The remarks by the sentencing court relative to defendant’s maintenance of innocence and lack of remorse, made after sentence was imposed and in response to a request for reconsideration of the sentence, did not constitute reversible error.
    Affirmed.
    1. Criminal Law — Arraignment — Statements by Defendant — Evidence — Admissibility of Statements — Statutes.
    The statute requiring one charged with a felony to be brought before a magistrate without unnecessary delay does not permit the exclusion from evidence of testimony by a police officer concerning an exculpatory statement made by the defendant prior to arraignment, where defendant sought to have the statement introduced into evidence during his trial (MCL 764.26; MSA 28.885).
    2. Appeal and Error — Evidence — Erroneous Reasoning — Correct Result.
    Reversible error does not result where testimony of an exculpatory statement by defendant is improperly excluded on a statutory ground, but where the statement is properly excludable as hearsay not qualifying under any exception, since the assignment by the trial court of the wrong reason to the correct result does not affect the disposition on appeal.
    3. Appeal and Error —. Criminal Law — Evidence — Tracking Dogs — Validity — Confrontation of Witnesses — Objection.
    The question of the scientific validity of evidence relating to the use of tracking dogs and the question of whether the introduction of such evidence deprived defendant of his constitutional right to confront witnesses will not be considered on appeal where no objection on those grounds was presented to the trial court.
    4. Criminal Law — Evidence — Tracking Dogs — Admissibility — Foundation.
    Tracking dog evidence is admissible in criminal cases where a proper foundation is laid which shows that: (1) the handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.
    5. Appeal and Error — Criminal Law — Jury Instructions — Failure to Object — Manifest Injustice.
    Defendant’s failure to request a cautionary instruction relative to the unreliability of tracking dog evidence and his failure to object to the jury charge containing no such reference bars reversal on appeal where no manifest injustice has been shown.
    6. Criminal Law — Evidence — Tracking Dogs.
    Tracking dog evidence, standing alone, is insufficient to support a conviction.
    7. Criminal Law — Jury Instructions — Tracking Dogs — Prospective Application.
    Trial courts in the future must instruct the jury, even in the absence of a request by counsel, that tracking dog evidence; (1) must be considered with caution; (2) is of slight probative value, and (3) if found reliable, cannot support a conviction in the absence of other direct evidence of guilt.
    8. Criminal Law — Sentencing — Judge’s Statements — Refusal to Admit Guilt.
    A court may not base its sentence, even in part, on a defendant’s refusal to admit guilt.

      Edwards & Edwards, for defendant on appeal.
    Before: Cynar, P.J., and D. E. Holbrook, Jr. and D. C. Riley, JJ.
   D. C. Riley, J.

On November 3, 1977, defendant Harold Perryman was jury convicted of breaking and entering an unoccupied dwelling with intent to commit larceny, contrary to MCL 750.110; MSA 28.305.

The evidence adduced at trial revealed that on the evening of May 4, 1977, complainant Lucile Fairchild returned to her home to find broken glass and a previously locked door ajar, whereupon she ran to a neighbor’s house in order to call the police. She returned in the company of two men, one of whom was armed with a pistol. Subsequently, gunfire was exchanged between one of the complainant’s escorts, Irving Jackson, and those in the house. Complainant’s other companion, Dock Daley, testified in court that he observed Jackson shoot the defendant twice. Daley then saw defendant limp to the rear of the house and climb out through a back window. Jackson himself, however, could not testify that his shots struck anyone.

Approximately 45 minutes after discovery of the crime, Officer Phineas Williams arrived at the scene with Schultz, a police tracking dog. Upon being told that two people had jumped a backyard fence, Officer Williams placed Schultz on a scent at the fence where he had found evidence of blood and a footprint, a distance of 75 feet from the house. Schultz was able to locate defendant lying in a park a few blocks away, with two gunshots in his leg.

After the jury’s verdict, defendant was sentenced to a term of 7 to 15 years imprisonment. He now appeals as of right pursuant to GCR 1963, 806.1, and raises three issues.

Defendant first assigns as error the lower court’s decision to preclude defense counsel, during cross-examination at trial, from questioning a testifying police officer as to the substance of an exculpatory statement made by defendant to the officer, after defendant was arrested but before arraignment. Following a bench conference, the court ruled that, in accordance with MCL 764.26; MSA 28.885, it would suppress any declarations made prior to defendant’s presentment before a magistrate. In this the court erred, as decisions interpreting that provision are premised upon a concern for the voluntariness or coercive quality of statements made by a defendant in police custody prior to arraignment. See People v Antonio Johnson, 85 Mich App 247; 271 NW2d 177 (1978), and cases cited therein. Here, defendant himself sought to introduce the statement into evidence, thus rendering irrelevant any inquiry into the statement’s compulsive nature.

Nevertheless, we do not reverse, inasmuch as the statement offered (that defendant took no part in the breaking and entering, and was innocently shot by a third person) was excludable as hearsay not qualifying under any exception. Our disposition is not affected by the fact that the trial court assigned the wrong reason to the correct result. Durbin v K-K-M Corp, 54 Mich App 38, 46; 220 NW2d 110 (1974), lv den 394 Mich 789 (1975), Scott v Saupe, 32 Mich App 503, 508; 189 NW2d 159 (1971).

Defendant further alleges that the trial court erred in admitting the tracking dog evidence, maintaining that: (1) such evidence is scientific in nature, and lacks the requisite unimpeachable validity necessary to justify its admission, and (2) the introduction of tracking dog evidence deprived defendant of his constitutional right to confront witnesses. Neither of these objections were presented to the court below, therefore, we decline to review them. The court did, however, rule the evidence admissible as it satisfied the foundational guidelines enunciated in People v Norwood, 70 Mich App 53, 55; 245 NW2d 170 (1976), lv den 397 Mich 884 (1976), which followed People v Harper, 43 Mich App 500, 508; 204 NW2d 263 (1972), lv den 389 Mich 759 (1973), in holding tracking dog evidence admissible in Michigan, but only if the following four safeguards are established:

"(1) the handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.”

Defendant concedes on appeal that a proper showing was made that the trail Schultz pursued was fresh. Our own review of the testimony discloses adequate compliance with the remaining criteria sufficient to justify its evidentiary admission.

Officer Williams testified that he had trained extensively with Schultz for 13 weeks (which training included urban as well as rural tracking) and described in detail the dog’s manner of investigation, and how he had learned to "read” Schultz, i.e., to interpret the canine’s actions. He stated that he had worked with one other dog before Schultz, and further that he had been associated with the K-9 Unit of the Detroit Police Department for five years.

Williams asserted that upon graduation with Schultz from training school they had together successfully tracked humans in at least 11 of 36 attempts, and explained the 25 nonsuccesses as involving those situations where a person had entered a motor vehicle, or where the tracking was attempted in a building that disclosed no occupants, etc. On cross-examination, he testified that, to his knowledge, Schultz had never made a mistake.

This testimony was sufficient to establish that (1) Officer Williams was qualified to handle Schultz, and (2) that Schultz had some record of accuracy in tracking humans. It was then up to the jury, in light of his record, to weigh the credibility of the dog’s tracking.

As to the third requirement, that the dog was placed on a trail where the circumstances indicate the suspect had been, Williams stated that upon arriving at the scene he was informed that two individuals (one of whom had been shot) had escaped over a rear fence. Upon determining that no officers or civilian witnesses had been in the area, he found a footprint near a bloody portion of the fence and had Schultz begin tracking from that point.

The officer’s account of what he found at the scene corresponds with testimony from other witnesses as to what did occur. His action in placing the dog on the trail from the footprint, rather than from the house, where several nonsuspects had been, was reasonably calculated to find a suspect.

In viewing this evidence as a whole, we are convinced that the prerequisites of People v Norwood, supra, and People v Harper, supra, were met in the present case, and therefore, are unable to conclude that the lower court’s evidentiary ruling was erroneous.

Defendant also contends that it was error for the court not to give a cautionary instruction on the unreliability of tracking dog evidence. However, defendant made no request at trial for the instruction, and counsel declared itself satisfied with the court’s intended jury charge, which included no such reference. As we are not persuaded as to the existence of manifest injustice, the failure to object to the jury instruction bars reversal. People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978).

Nevertheless, we are of the opinion that this type of evidence, though properly admissible, is to be treated with caution. Recognition of its fallibility can be found even in the opinions of those jurisdictions which permit its introduction at trial. For this reason, most hold, as does Michigan, People v McPherson, 85 Mich App 341, 344-347; 271 NW2d 228 (1978), that tracking dog evidence, standing alone, is insufficient to support a conviction.

We also perceive the danger that a jury may place undue importance on evidence of this type:

As McPherson noted:

" 'The principal objections to the use of bloodhound evidence appear to be: (1) That the many variable factors involved, such as the training and experience of the dogs, the manner in which they are handled, the circumstances surrounding the trailing, etc., as well as the inability of the court to check up on the dogs and tell why they acted as they did, make such evidence too uncertain and unreliable to warrant its admission in the trial of a criminal case; (2) that the jury, due to the superstitious awe with which people regard the actions of animals, are likely to give more weight to such evidence than it is entitled to, particularly where it is introduced in connection with some heinous crime about which there had been much public indignation and excitement.’ ” 85 Mich App at 345, quoting 18 ALR3d 1221, p 1223.

We view these hazards as genuine ones, and therefore hold, prospectively, that a court has a duty, even absent a request by counsel, to inform the jury that tracking dog evidence: must be considered with caution; is of slight probative value; and if found reliable, cannot support a conviction in the absence of other direct evidence of guilt. See People v Centolella, 61 Misc 2d 723; 305 NYS2d 279 (1969).

Finally, we find no merit in defendant’s assertion that his sentence was illegally imposed because the trial judge considered defendant’s maintenance of innocence and lack of remorse in determining punishment. In People v Yennior, 399 Mich 892 (1977), the Michigan Supreme Court, reversing this Court in lieu of granting leave, stated that "A court cannot base its sentence even in part on defendant’s refusal to admit guilt”. Here, while the court mentioned these factors, we note it did so not only after sentence had been imposed, but also in direct response to defense counsel’s invitation to reconsider the issue of defendant’s minimum sentence and allegations of innocence. Cf., People v McDaniels, 38 Mich App 174, 177; 196 NW2d 25 (1972), lv den 387 Mich 787 (1972). On these facts, we do not find reversible error.

Affirmed.

D. E. Holbrook, Jr., J., concurs in result only.

       "Every person, charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.” MCL 764.26; MSA 28.885.

       Const 1963, art 1, § 20.

       The record reveals only the indistinct objection that "Officer Williams and his Schultz * * *” were "incompetent, immaterial and irrelevant”.

       See also People v McPherson, 85 Mich App 341; 271 NW2d 228 (1978), People v Orsie, 83 Mich App 42; 268 NW2d 278 (1978), People v Sands, 82 Mich App 25; 266 NW2d 652 (1978). Michigan follows the great majority of jurisdictions that have ruled on the question. Anno: Evidence of trailing of dogs in criminal cases, 18 ALR3d 1221, 1225-1229.

        People v Yennior, 72 Mich App 35; 248 NW2d 680 (1976).


author: Cynar, P.J.

text:
    O’KEY v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Docket No. 78-507.
    Submitted February 15, 1979, at Detroit.
    Decided April 16, 1979.
    Leave to appeal denied, 406 Mich 1014.
    Plaintiff, Leonard B. O’Key, was injured while sitting in his car with the motor running when someone opened the passenger door, pointed a gun at plaintiff and said something like "let’s go home”. Plaintiff put the car in reverse and accelerated. The gunman fired shots into the car injuring plaintiff. As a result plaintiff incurred hospital expenses and loss of wages. Defendant, State Farm Mutual Automobile Insurance Company, plaintiff’s no-fault insurer, refused plaintiff’s claim. Plaintiff sued and the Wayne Circuit Court, Victor J. Baum, J., granted defendant’s motion for summary judgment, ruling that the injury did not arise out of the ownership, operation or use of the vehicle. Plaintiff appeals. Held:

    The injury arose out of an "accident” but the accident did not arise out of the ownership, maintenance or use of the vehicle since there must be a causal connection between the injury and the ownership, maintenance or use of the vehicle more than merely incidental, fortuitous or "but for”, and the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle.
    Affirmed.
    1. Automobiles — No-Fault Insurance — Accidents.
    An accident, for purposes of collecting personal protection insurance benefits under the no-fault act, is an event which under the circumstances is unusual and not expected to the person to whom it happened; being shot by an unknown, armed assailant results in injuries arising out of an accident and the fact that the gunman acted intentionally in inflicting the injury is irrelevant.
    References for Points in Headnotes

       7 Am Jur 2d, Automobile Insurance § 83.

       7 Am Jur 2d, Automobile Insurance §§ 82, 84.
    Liability insurance: assault as an "accident,” or injuries from it as "accidental,” within coverage clause. 33 ALR2d 1027.

      2. Automobiles — Insurance — "Ownership, Maintenance, Use”.
    There must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile to sustain a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile; the causal connection must be more than incidental, fortuitous or "but for”, and the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle; assault by an armed assailant upon the driver of a vehicle is not the type of conduct "reasonably identifiable” with the use of the vehicle.

      Levine & Benjamin, P.C. (by Linda K. Harris), for plaintiff.

      Draugelis, Ashton & Scully, for defendant.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, P.J.

Plaintiff appeals as of right from a summary judgment of no cause of action in an action to recover no-fault insurance benefits from defendant.

The facts were stipulated to by the parties hereto to serve as a basis for plaintiff’s and defendant’s motions for summary judgment. The plaintiff was sitting in his car in front of his brother’s home, waiting for his brother. The car engine was running and the gearshift lever was in park. He suddenly saw an individual open the passenger door, point a gun in his direction, and mumble something like "let’s go home”. At this point he put the car in reverse and accelerated. The assailant fired two or three shots into the car and continued firing outside of the car as he was thrown away from the vehicle by its backward movement. One of the bullets struck the plaintiff in the hip, requiring hospitalization.

As a result of the gunshot wound, plaintiff incurred hospital expenses and loss of wages. He filed a claim with defendant, his no-fault insurer, for the sum of $5,774.50, but defendant refused to pay. After plaintiff commenced this action, defendant’s motion for summary judgment was granted on the ground that the injury did not arise out of the ownership, operation, maintenance or use of a motor vehicle.

Plaintiff initially contends that the absence of an express policy exception to personal protection insurance coverage under the facts at bar requires a finding that coverage was provided by the policy.

We disagree. An insurer is under no duty to specify every conceivable fact situation where coverage will not be provided. Rather, it is free to indicate, in clear and understandable language, a general class of risks which are covered by the policy.

A reading of the policy indicates that it was intended to cover injuries "caused by accident and arising out of the ownership, operation and maintenance or use, including loading or unloading, of a motor vehicle as a motor vehicle”. This language is virtually identical to that of MCL 500.3105(1); MSA 24.13105(1), which sets forth the extent of required coverage in a policy providing personal protection insurance. The scope of coverage is clearly and unambiguously set forth in the policy. Therefore, it should be interpreted according to the plain meaning of the words used. Garrison v Farm Bureau Mutual Ins Co, 84 Mich App 734, 736; 270 NW2d 678 (1978). Sturgis National Bank v Maryland Casualty Co, 252 Mich 426, 429; 233 NW 367 (1930).

Plaintiff next contends that under the terms of the coverage provided by the policy, he was entitled to recover personal protection benefits. In order to prevail on this argument, plaintiff must establish (1) that the injury arose from an accident and (2) that the injury arose out of the ownership, operation, maintenance, or use of the motor vehicle.

We agree with plaintiffs contention that the injury in this case arose out of an "accident”. In State Farm Mutual Automobile Ins Co v Coon, 46 Mich App 503, 506; 208 NW2d 532 (1973), a panel of this Court examined prior Michigan case law and concluded that an accident is "an event which under the circumstances is unusual and not expected to the person to whom it happened(Emphasis in 46 Mich App.)

Applying this definition to the facts at bar conclusively establishes that plaintiff’s injury arose out of an accident. The appearance of an unknown, armed assailant is without a doubt "unusual” and cannot be said to have been "expected”. Since the question of whether an injury arose out of an accident is to be determined from the point of view of the injured person, Coon, supra, pp 505-506, it is irrelevant that the gunman acted intentionally in inflicting the injury.

It is thus necessary to determine whether plaintiffs injury arose out of the "ownership, operation, maintenance, or use of an automobile”. This phrase was discussed in great detail in Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975), where several passengers riding in the insured’s automobile committed an assault on a pedestrian, leading to his death. In determining that the insurer of the driver of the automobile had no duty to defend in an action against the insured the Court stated the following test:

"[WJhile the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuituous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.” Kangas, supra, p 17.

Applying this test to the case at bar leads us to conclude that the injuries sustained by plaintiff did not arise out of the ownership, operation, maintenance or use of the automobile. Although plaintiff was an occupant of an automobile at the time he sustained the injury, this is not a controlling consideration in resolving this issue. The automobile was not the instrumentality of the injury. Rather, its role in this matter was incidental. Plaintiff’s occupancy of the car was a fortuity, in no way connected with the assault. Nor is an assault by an armed assailant upon the driver of a car the type of conduct that is "reasonably identifiable” with the use of a car. Since the injury in this case did not arise out of the ownership, operation, maintenance or use of the car, the trial judge properly granted defendant’s motion for summary judgment in this case.

Affirmed. No costs, interpretation of a statute involved.

       That section reads:
      "(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1); MSA 24.13105(1).

       We find unconvincing plaintiffs attempt to link the car to the injury by contending that the assailant intended to steal the car or to force plaintiff to drive him somewhere. It is equally likely, under the facts of this case, that the gunman planned merely to rob plaintiff.


author: D. F. Walsh, J.

text:
    DRAPEFAIR, INCORPORATED v BEITNER
    Docket No. 78-972.
    Submitted March 14, 1979, at Detroit.
    Decided April 16, 1979.
    Drapefair, Incorporated, was the employer of Jacob Beitner who sustained a broken leg in a slip and fall while visiting Irving’s Original Restaurant & Deli. Because the injury arose in the course of Beitner’s employment, worker’s compensation benefits were paid to him totalling $15,852.70. An action naming Drape-fair as plaintiff was brought against Irving’s and other defendants alleging a breach of duty in failing to remove excessive accumulations of ice and snow which resulted in Beitner’s fall and injury. The employee Jacob Beitner and his attorney Elliot Beitner were also named as defendants. In Count I of its complaint, plaintiff asked for judgment citing its statutory lien and statutorily prescribed right to pursue an action to recover compensation benefits paid or payable from the defendant tortfeasors. In Count II, plaintiff alleged that despite notice to ' the parties of plaintiff’s asserted statutory lien, defendant Jacob Beitner, by and through his attorney Elliot Beitner, engineered a settlement with defendant tortfeasors and that thereafter all defendants had wrongfully converted the settlement money rightfully belonging to plaintiff pursuant to its statutory lien. Judgment for $15,852.70 was requested. Later, plaintiff filed a motion to amend its complaint to include its worker’s compensation carrier as a party plaintiff. Defendants Beitner filed answers and a subsequent amended motion for an accelerated judgment of dismissal challenging Drapefair’s status as the proper party plaintiff. Attached to this motion was an affidavit, of Joseph Merin, Drapefair’s president and chief stockholder stating that he had never authorized the bringing of the lawsuit in Drapefair’s name and did not wish the suit to continue. Oakland Circuit Court, Richard D. Kuhn, J., issued an order denying plaintiffs motion to amend its complaint to add its worker’s compensation carrier as a party plaintiff and granting accelerated judgment for defendants. The court found that the worker’s compensation insurance carrier was the real party in interest and that the action had been commenced on behalf of Drapefair without that company’s authorization and that the action was being continued against Drapefair’s wishes. The complaint was dismissed. Plaintiff appeals. Held:

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation §§ 70, 71.
    Statute of limitations applicable to action, by any of subrogation or the like, by employer or insurance carrier against third person for injury to employee. 41 ALR2d 1044.

       82 Am Jur 2d, Workmen’s Compensation § 429.

       61 Am Jur 2d, Pleading § 314.

       82 Am Jur 2d, Workmen’s Compensation § 439.

       61 Am Jur 2d, Pleading § 336.

       59 Am Jur 2d, Parties § 239.

       82 Am Jur 2d, Workmen’s Compensation §§ 433, 434.

       82 Am Jur 2d, Workmen’s Compensation §§ 437, 439.

      1. The real party in interest with a substantive right to recover in the name of an injured employee against third-party tortfeasors is an employer or its insurance carrier which has paid compensation benefits to the employee. Drapefair paid no compensation benefits to Beitner. The real party in interest was Drapefair’s compensation carrier; therefore Drapefair had no interest in the subject matter of the controversy and this lack of interest was underscored by president Merin’s affidavit. Another reason the insurance carrier could not have been joined as a party plaintiff in Drapefair’s action is because the carrier, as subrogee of the employee’s right to recover for personal injury, was subject to a three-year statute of limitations and at the time Drapefair’s motion to amend its complaint was made, the three-year statute had run. Therefore, since the named plaintiff had no interest in the controversy and since the limitations period had expired, the original action was void and the motion to amend was properly denied as to Count I.
    2. As to Count II, an action for conversion of the settlement money carries a six-year statute of limitations instead of the three-year statute for recovery of damages for personal injury. Justice dictates that the insurance company, the sole real party in interest, should bring suit in its own name. Bringing suit in the name of an employer without its authorization and against its apparent wishes cannot be condoned.
    Affirmed.
    1. Workmen’s Compensation — Torts — Third-Party Tortfeasors — Settlement by Employee — Action by Employer — Action by Insurance Carrier — Statutes.
    An injured employee has the right to settle his claim against a third-party tortfeasor; however, settlement with a third-party tortfeasor does not extinguish an employer’s or his insurance carrier’s right to proceed against the third-party tortfeasor and if the injured employee does not sue a potentially liable third party within one year from the date of injury, the employer or his insurance carrier may sue to enforce the liability of the third party in the employee’s name (MCL 418.827[1], [2], [3]; MSA 17.237[827][1], [2], [3]).
    2. Workmen’s Compensation — Torts — Third-Party Tortfeasors — Action by Employer — Action by Insurance Carrier.
    The substantive right to recover from a third-party tortfeasor in the name of an injured employee belongs to the employer or his compensation insurance carrier who has paid compensation benefits; the employer or his insurance carrier is the real party in interest in a suit brought in the name of the employee against a tortfeasor.
    3. Pleading — Amendment of Pleadings — Consent to Amendment — Motions — Judge’s Discretion — Requirements of Justice — Court Rules.
    Amendment of a complaint more than 15 days after an answer has been filed requires leave of the court or written consent of the adverse party and, although motions to amend pleadings are always addressed to the sound discretion of the trial court, leave to amend should be freely given when justice so requires (GCR 196.3,118.1).
    4. Workmen’s Compensation — Limitation of Actions — Third-Party Tortfeasors — Action by Insurance Carrier — Subrogees — Statutes.
    The right to pursue an action against a third-party tortfeasor to recover compensation benefits paid or payable to an injured employee by an insurance carrier, as subrogee of the employee’s right to recover for personal injury, is subject to a three-year statute of limitations (MCL 418.827[1], 600.5805; MSA 17.237[827][1], 27A.5805).
    5. Pleading — Amendment of Pleadings — Relation Back — Court Rules.
    Amendment to pleadings relate back to the date of the original pleadings whenever the claim or defense asserted in the amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, with the exception of amendments made for the purposé of demanding a trial by jury (GCR 1963, 118.4).

      6. Pleading — Amendment op Pleadings — New Parties — Subject Matter — Former Action — Interest op Original Plaintiff.
    Amendment of pleadings to change the identity of the party plaintiff may be allowed where the plaintiff originally brought an action in the wrong capacity and the new plaintiff may be allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of the action, an interest in the subject matter of the controversy.
    7. Workmen’s Compensation — Torts — Third-Party Tortfeasors — Settlements — Reimbursement of Employer — Statutes.
    Any proceeds recovered by an injured employee in a settlement with a third-party tortfeasor should first reimburse the employer or his insurance carrier for any amounts paid or payable to the date of recovery (MCL 418.827[4], [5]; MSA 17.237[827][4][5]).
    8. Limitation of Actions — Torts — Subrogees — Tort Recovery — Conversion of Money — Statutory Liens — Three-Year Statute — Six-Year Statute.
    An action against third-party tortfeasors by an employer or his insurance carrier, as subrogee of an injured employee, is governed by the three-year statute of limitations applicable to actions to recover damages for injuries to persons or property; however, an action to recover for wrongful conversion and disbursement of money rightfully belonging to an employer or his insurance carrier in violation of a statutory lien is not an action to recover damages for injuries to persons or property and the general six-year statute of limitations applies (MCL 600.5805, 600.5813; MSA 27A.5805, 27A.5813).

      Conklin, Benham, McLeod, Ducey & Ottaway (by Martin L. Critchell), for plaintiff.

      Goldstein, Meklir, Jasmer, Schreier & Feldman, for Congress Management, R.R.G.S. Management and Great Scott Supermarkets.

      Elliot I. Beitner, P.C., for defendants Jacob Beitner and Elliot Beitner.

      Morbach, Cheatham & MacArthur (by Paul F.

      Ray), for defendant Irving Gutman doing business as Irving’s Original Restaurant & Deli.
    Before: V. J. Brennan, P.J., and Bronson and D. F. Walsh, JJ.
   D. F. Walsh, J.

Plaintiff appeals the February 14, 1978, order denying its motion to amend its complaint and granting accelerated judgment for all defendants.

On December 1, 1974, defendant Jacob Beitner, employee of plaintiff Drapefair, Inc., sustained an injury while visiting Irving’s Original Restaurant & Deli. Defendant Great Scott Supermarkets operated a retail food store near Irving’s. Defendants Congress Management and R. R. G. S. Management were owners or general managers of this commercial property. Because the injury arose in the course of Jacob Beitner’s employment, worker’s compensation benefits were paid to him totalling $15,852.70.

In its July 27, 1977, complaint plaintiff alleged that defendants Irving’s, Great Scott, Congress and R.R.G.S. had breached their respective duties by failing to remove excessive accumulation of ice and snow, directly resulting in defendant Jacob Beitner’s falling and sustaining a broken leg. In Count I of its complaint plaintiff asked for judgment in the amount of $25,000, citing its "statutory lien and * * * statutorily prescribed right to pursue an action against and recover compensation benefits paid or payable from” the defendant tortfeasor. MCL 418.827; MSA 17.237(827).

In Count II plaintiff alleged that, despite the June 2, 1975, notice to the parties of plaintiff’s asserted statutory lien, defendant Jacob Beitner, by and through his attorney defendant Elliot Beitner, "engineered a settlement with” the defendant tortfeasors. It was alleged that all defendants had wrongfully converted the settlement money rightfully belonging to plaintiff pursuant to its statutory lien. A judgment in the maximum amount of $15,852.70 was requested.

Among the various answers filed in response to plaintiffs allegations was the claim by defendants Beitner that, if a lien existed in plaintiffs favor, it did not exist as to them but only as to the defendant third-party tortfeasors. The allegation that there was a settlement between Jacob Beitner and defendants Irving’s and Great Scott was admitted.

In response to an affirmative defense raised by defendant Irving’s, plaintiff filed, on December 16, 1977, a motion to amend its complaint to include plaintiffs worker’s compensation insurance carrier as a party plaintiff. It was defendant Irving’s allegation that plaintiff Drapefair was not the real party in interest. Plaintiff also requested that a constructive trust be imposed upon defendants Beitner to the extent of money received in settlement of any claims arising out of the December 1974 incident and received after payment of compensation benefits.

On December 19, 1977, defendants Beitner filed an "Amended Motion for Accelerated Judgment of Dismissal”, challenging Drapefair’s status as the proper party plaintiff. Attached to this motion was the affidavit of Joseph Merin, Drapefair’s president and chief stockholder, stating that he had never authorized the bringing of this lawsuit in Drape-fair’s name. Nor had he been informed that the lawsuit had been brought in Drapefair’s name. He concluded, "I specifically do not authorize such a lawsuit being filed on my behalf and do not wish the suit to continue.” In plaintiffs original complaint, Mr. Merin was referred to as Jacob Beitner’s employer, owner and operator of Drapefair, Inc.

On February 14, 1978, the order denying plaintiffs motion to amend and granting accelerated judgment for defendants was entered. The court found that the worker’s compensation insurance carrier was the real party in interest and that the action had been commenced on behalf of Drapefair without that company’s authorization and that the action was being continued against Drapefair’s wishes. The complaint was dismissed.

In discussing the correctness of the trial court’s entry of accelerated judgment for all defendants we will address the two counts separately.

Count I (claims against defendant third-party tortfeasors only)

As to these defendants and Count I what is at issue is proper application of § 827 of the Worker’s Disability Compensation Act:

"(1) Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and carrier. Any party in interest shall have a right to join in the action.
"(2) Prior to the entry of judgment, either the employer or carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor.
"(3) Settlement and release by the employee is not a bar to action by the employer or carrier to proceed against the third party for any interest or claim it might have.
"(4) If the injured employee or his dependents or personal representative settle their claim for injury or death or commence proceedings thereon against the third party before the payment of workmen’s compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided.
"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or déath only, after deducting expenses of recovery, shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” MCL 418.827; MSA 17.237(827).

Under paragraph 2 of this section, the right of an injured employee to settle his claim against third-party tortfeasors is recognized. Paragraph 3 provides that an employee’s settlement with a third-party tortfeasor does not extinguish the employer’s or insurance carrier’s right, as set forth in paragraph 1, to proceed against the third-party tortfeasor. Under paragraph 1, if an injured employee does not sue a potentially liable third party within one year from the date of injury, the employer or insurance carrier may sue to enforce the liability of the third party in the employee’s name. The substantive right to recover from a third-party tortfeasor in the name of an injured employee belongs to the employer or compensation insurance carrier who has paid compensation benefits; that is, the party who has paid benefits to the employee is the real party in interest in a suit brought in the name of the employee against a tortfeasor. Detroit v Spivey, 68 Mich App 295, 299-300; 242 NW2d 561 (1976).

In the instant case it was plaintiff Drapefair’s workers’ compensation insurance carrier who paid benefits to defendant Jacob Beitner. The carrier, therefore, was the real party in interest. Under GCR 1963, 201.2, the action against the third-party tortfeasors should have been brought by the carrier. See Sinai Hospital v Sivak, 88 Mich App 68; 276 NW2d 518 (1979).

It was in response to the contention that Drape-fair, who had not paid compensation benefits to Jacob Beitner, was not the real party in interest that the motion for leave to amend the complaint was made on December 16, 1977.

Amendment of a complaint more than 15 days after an answer has been filed requires leave of the court or written consent of the adverse party. Leave to amend is to be freely given when justice so requires. GCR 1963, 118.1. The grant or denial of a motion to add a party is governed by the same standard as applies to motions to amend pleadings. Such motions are always addressed to the sound discretion of the trial court. Matson v Soronen, 57 Mich App 190, 193; 226 NW2d 52 (1974), lv den 394 Mich 762 (1975).

We find that the trial court did not abuse its discretion in denying plaintiffs motion to amend its complaint as to Count I. On the contrary, a contrary ruling would have been improper. The injury which gave rise to the carrier’s right to recover from the third-party defendants under the theory set forth in Count I occurred on December 1, 1974. The provision of the Worker’s Disability Compensation Act which establishes the substantive right asserted in Count I incorporates the statute of limitations "prescribed by statute”. MCL 418.827(1). Since the carrier’s position vis-á-vis the third-party defendants, in Count I, is as subrogee of the employee’s right to recover for personal injury, the applicable statute of limitations is three years. MCL 600.5805; MSA 27A.5805. At the time the request to allow the real party in interest to join in the suit was made, the three-year limitations period governing Count I had run.

GCR 1963, 118.4 controls relation back of amended pleadings:

"Except for the purpose of demanding a trial by jury under sub-rule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”

In Plowman v Satkowiak, 22 Mich App 425; 177 NW2d 641 (1970), the plaintiff, by her administrator, brought a dramshop action against one of the defendants. At the pretrial conference this defendant argued that the plaintiff’s action was not proper under the liquor control act and moved for summary judgment. In response, the plaintiff moved to add her parents as parties plaintiff. The trial court held that the plaintiff’s administrator had no right of action against the defendant and denied the motion to add the parents as plaintiffs. Summary judgment was entered for the defendant. On appeal this Court noted the trial court’s error in considering the administrator as the plaintiff. On the contrary, suit had been brought by the decedent through her administrator. The Court found that a clear right of action belonged to the plaintiff by her administrator. In addition, the Court discussed the denial of the motion to add the plaintiff’s parents as parties plaintiff:

"The trial court denied plaintiffs motion to add new parties, having found that the administrator was not the proper party to bring an action in the present case. The trial court concluded that new parties could not be added as the two-year statute of limitations on actions brought under the liquor control act had run. This conclusion would have been correct had plaintiff’s administrator had no right of action against defendant Dropek. It is not true under the holding made here today.” Id. at 429. (Emphasis added.)

The Plowman court cited Doan v Chesapeake & Ohio R Co, 18 Mich App 271; 171 NW2d 27 (1969). In discussing the grant of leave to amend pleadings so as to enable plaintiffs who have brought suit in the wrong capacity to sue in the proper capacity, the Doan court approved the following limitation found in 63 Harvard L Rev 1177, 1239 (1950):

" 'However * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of suit, an interest in the subject matter of the controversy.’ (Emphasis supplied.)” 18 Mich App at 279.

Under this limitation, accelerated judgment was properly entered on Count I for the defendant third-party tortfeasors. Plaintiff Drapefair paid no compensation benefits to defendant Jacob Beitner and, therefore, had no interest in the subject matter of the controversy. The affidavit of the president of Drapefair, which underscores the company’s lack of interest in the subject matter of this controversy, indicates that suit was perhaps actually begun by the legal representatives of the insurance carrier but in the name of the employer. Since the named plaintiff had at no time any interest in the controversy and since the limitations period had expired, the original action was void and the motion to amend was properly denied as to Count I.

Count II (claims against all defendants)

Under § 827(4), any money recovered by an injured employee in settlement with a third-party tortfeasor is to be applied as provided in the Worker’s Disability Compensation Act. The following paragraph 5 describes the method in which settlement proceeds are to be disbursed: "Any recovery against the third party for damages * * * shall first reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery * * MCL 418.827(5).

In Gamble v American Asbestos Products Co, 381 Mich 105; 159 NW2d 839 (1968), the Supreme Court, in holding that a compensation carrier was entitled to a credit against future compensation benefits from the proceeds of the settlement received by the injured employee from the third-party tortfeasor, stated:

"Plaintiff says the statutory requirement that the settlement moneys or recovery shall be used to reimburse the insurance carrier refers only to recovery through judgment for the employee in its action against the third party and not to recovery by way of settlement before judgment in such action. We find no language in the statute whatsoever that leads permissibly to such conclusion. In fact, the language that in the event the employee shall settle his claim any money so recovered shall be applied as in the act provided, coupled with the further provision that any such recovery shall first reimburse employer or its insurance carrier, means the very converse.
"The statute says the employee may sue, settle with, and release the third party before judgment. The statute also says that any moneys so recovered shall be applied as therein provided, and thereafter provides that any recovery against the third party shall first reimburse the employer and its insurance carrier. We can see no lawful alternative to compliance with the express language of the statute by affirming, as we do, the decisions below.” Id. at 112.

The right of reimbursement from settlement proceeds was also discussed by the Supreme Court in Transamerica Freight Lines, Inc v Quimby, 381 Mich 149; 160 NW2d 865 (1968), where the Court affirmed judgment against the injured employee who had settled with the third-party tortfeasors. In ruling against the employee; the trial court had stated that the compensation insurance carrier’s right to reimbursement from the settlement recovery did not depend on whether the carrier had intervened in a suit instituted by the employee against the tortfeasors. The Supreme Court agreed, citing the plain language of § 827(4) that any money recovered by the employee in settlement of his claim for injury or death must first be applied to reimbursement of the employer or insurance carrier. Id. at 160. Also see Arnett v General Motors Corp, 22 Mich App 658; 177 NW2d 704 (1970).

Examination of the record convinces this Court that the trial court would not have abused its discretion in allowing plaintiff to amend its complaint as to Count II. The complaint and amended complaint clearly stated causes of action against all defendants. The foregoing cases conclusively establish the insurance company’s substantive right to proceed against defendant Jacob Beitner. And see the Supreme Court’s discussion in Quimby, supra, at 160-164 for a demonstration of the possibility of liability on the part of an injured employee’s attorney. With respect to the defendant third-party tortfeasors, it was alleged that, despite plaintiffs statutory lien, they "did wrongfully convert and disburse money rightfully belonging to the plaintiff, Drapefair, Inc., pursuant to said statutory lien”. Without expressing an opinion as to the merits of the carrier’s claims against each of the defendants in Count II, we note that, unlike those in Count I, these claims were not governed by the three-year statute of limitations for actions to recover damages for injury to persons and property. MCL 600.5805; MSA 27A.5805. Rather the general six-year statute of limitations applied to the claims set forth in Count II. MCL 600.5813; MSA 27A.5813.

Although we conclude that the claims in Count II, if brought by the real party in interest (i.e., the insurance carrier), would not have been barred by the running of the applicable limitations period, we nonetheless affirm the trial judge’s denial of plaintiffs motion to amend its complaint to add the insurance company as a party plaintiff. The judge was presented with the affidavit of Drape-fair’s president which clearly indicated that company’s dissatisfaction with the bringing of suit in its name. Denial of the motion to amend was based on this affidavit. In light of the affidavit, the judge properly exercised his discretion in determining that amendment would not serve the ends of justice. On the contrary, justice dictates that the insurance company, the sole real party in interest, bring suit in its own name. The insurance company’s bringing of suit in the name of the employer, without the authorization of and against the apparent wishes of the employer, cannot be condoned.

Accelerated judgment for all defendants as to Counts I and II is affirmed.

Costs to appelles.

       Settlement between defendant Jacob Beitner and the defendant third-party tortfeasors was reached without Mr. Beitner filing suit against the tortfeasors.

       Plaintiff Drapefair’s claim that it is a real party in interest due to its interest in securing a credit against possible future liability to defendant Jacob Beitner is not persuasive. Worker’s compensation benefits were paid to Jacob Beitner pursuant to a redemption agreement. MCL 418.835; MSA 17.237(835). Jacob Beitner agreed, in exchange for a lump sum payment, to forego any right to proceed against Drapefair or its insurance carrier for further compensation benefits. The redemption agreement was a final settlement of Drape-fair’s liability under the Worker’s Disability Compensation Act. White v Weinberger Builders Inc, 397 Mich 23; 242 NW2d 427 (1976), aff'g 49 Mich App 430; 212 NW2d 307 (1973), Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 364 fn 2; 258 NW2d 227 (1977).

       The holding in Gamble, supra, in light of the time sequence there involved clearly indicates the inapplicability of the three-year statute of limitations. Also see Quimby, supra, at 172 (opinion of Black, J.).
      The conversion claim is also governed by the six-year statute of limitations. See Miller v Green, 37 Mich App 132; 194 NW2d 491 (1971).