author: D. E. Holbrook, J.

text:
    RICHMAN v CITY OF BERKLEY
    Docket No. 77-2086.
    Submitted April 20, 1978, at Detroit.
    Decided June 20, 1978.
    Leave to appeal applied for.
    Stella Richman brought an action against the City of Berkley for damages for injuries allegedly received when a car in which she was riding was struck by a city truck. The city admitted its liability, and the matter went to the jury solely on the issue of damages. The Oakland Circuit Court, Robert B. Webster, J., entered a judgment for plaintiff in the amount of no dollars because the jury had returned a verdict in the amount of $1,000 and the city had already made advance payments to the plaintiff of approximately $2,000. Plaintiff appeals, alleging that the trial court erred in refusing to give the plaintiffs requested jury instructions regarding the plaintiffs pre-existing conditions and on the apportionment of damages. Held:

    1. A requested instruction that a defendant must take the plaintiff as he finds him is a basic tort rule of law and should have been given.
    2. A requested instruction that the jury should hold a defendant liable for the entire injury where it is impossible to apportion damages between a plaintiffs pre-existing condition and the aggravation of that condition caused by the defendant’s negligence should have been given.
    Reversed and remanded.
    1. Torts — Instructions to Jury — Refusal to Instruct.
    A trial court’s refusal to give a plaintiffs requested instruction to the jury on a basic tort rule of law, that a tortfeasor takes his victim as he finds him, is error.
    2. Negligence — Instructions to Jury — Pre-existing Injury — Aggravation of Injury — Apportionment of Damages.
    An instruction to the jury in a negligence case that if it is impossible to apportion damages where the actions of the defendant have caused an aggravation of a pre-existing condition in the plaintiff the defendant should be held liable for the entire injury is proper and should be given by a trial court where requested by the plaintiff and where the evidence supports such an instruction.

      References for Points in Headnotes
    [1] 57 Am Jur 2d, Negligence §§ 8,160.
    [2] 22 Am Jur 2d, Damages § 360.
    [3] 5 Am Jur 2d, Appeal and Error § 811.

      3. Appeal and Error — Trial—Instructions to Jury — Refusal to Instruct.
    Refusal of a trial court to give a requested jury instruction which states the applicable law and which is supported by the evidence is error; if the error might well have altered the result, or is one without which the Court of Appeals can say the result might well have been different, the error is reversible.

      Peter R. Barbara & Associates, P. C. (by Peter R. Barbara and Frank G. Becker), for plaintiff.

      Patterson & Patterson, Whitñeld, Manikoff and White, for defendant.
    Before: D. F. Walsh, P. J., and D. E. Holbrook and R. M. Maher, JJ.
   D. E. Holbrook, J.

On March 17, 1975, plaintiff, Stella Richman, instituted suit in Oakland County circuit court, seeking recovery for injuries allegedly caused when defendant City of Berkley’s garbage truck struck the rear of the car in which plaintiff was a passenger. The accident occurred on August 2, 1973. The case went to the jury solely on the question of damages as the defendant admitted its liability. The jury rendered a verdict for plaintiff of $1,000. Since defendant had made advanced payments of approximately $2,000, a judgment for plaintiff was entered in the amount of no dollars. Plaintiff filed a motion for a new trial or in the alternative, for additur. This motion was denied and plaintiff appeals as of right.

Plaintiff raises two issues on appeal. This Court need only address the issue of whether the trial court committed reversible error when it refused to give plaintiffs supplemental instructions number II and III.

The plaintiff requested that the trial court give the following jury instructions:

"Supplemental Instruction II
"You are instructed that it is the law of this state that the defendant takes the injured person as he finds him. Thus, the fact that the injuries and damages sustained were not anticipated will not relieve defendant from liability and monetary damages for any and all disabilities resulting to plaintiff as a proximate result of defendant’s negligence. Therefore, you are instructed that if you find that the plaintiff was unusually susceptible to injury and damage, that fact will not relieve the defendant from liability and monetary damages for any and all disability and damages resulting to her as a proximate result of defendant’s negligent misconduct.
"Supplemental Instruction III
"Under our law, the defendant is responsible to compensate and [sic] injured plaintiff for that damage which his wrong has caused. If a condition of pain or disability in the plaintiff is a product of a pre-existing disease or state of health, and the effects of trauma from the accident which is the basis of this suit, you must attempt to apportion such pain and disability as to whether it was due to the accident or would have existed in any event. However, it becomes impossible to make this apportionment if you can’t apportion the amount of damages resulting from each individual cause, the defendant whose act of negligence caused the trauma and the very problem of the risk of uncertainty, is held responsible for the entire damage. That is only if you cannot separate. Thus, if you, the jury, are unable to make an apportionment or division of accident and non-accident injuries and damages, there is, what in law is considered to be an indivisible injury and the defendant must be deemed to be responsible for all such injury and damages you have determined her to have sustained. If from the nature of the case damages cannot be estimated with certainty and there is a risk of giving by one course less and another course more than a fair compensation, it is the policy of the law of this state that it is better to run a slight risk of giving somewhat more than actual compensation than to reach a result which under the circumstances of the case, would in all reasonable probability, prejudice the injured plaintiff for the recovery of a large portion of the damages he has sustained.”

Instruction number II is a basic tort rule of law —a tortfeasor takes his victim as he finds him. McNabb v Green Real Estate Company, 62 Mich App 500, 518; 233 NW2d 811 (1975), lv den, 395 Mich 774 (1975). This instruction should be given by the trial judge in the new trial.

Plaintiffs requested supplemental instruction number III was given and approved in McNabb, supra, pp 515-519. In McNabb, plaintiff brought suit for a fractured left leg he suffered in 1969 as a result of falling on defendant’s steps. In 1971, he suffered a stroke which affected his right leg and in 1972 he had to have three toes amputated from his left foot because of gangrene. At trial, there was considerable dispute over whether the 1971 stroke was related to the 1969 fall and the extent to which the 1969 fall had contributed to Mr. McNabb’s disability.

The trial court in McNabb gave an instruction to the jury which was identical to plaintiffs supplemental instruction number III in the instant case. In discussing the propriety of the instruction, the Court stated as follows at 517-519:

"We ñnd this instruction to have been correctly given. A clear factual basis for it exists. The first emphasized portion of the instruction, i.e., that if the jury could not apportion damages, it should hold defendant responsible for all of them, was based on a decision of the Colorado Supreme Court, Newbury v Vogel, 151 Col 520; 379 P2d 811 (1963). The plaintiff in that case suffered from arthritis prior to the time that he was in an auto accident with the two defendants. Two medical experts could not apportion plaintiff’s injuries between his pre-existing condition and the accident-caused aggravation of that condition. The court found that the trial court had committed error in refusing to give an instruction tendered by plaintiff substantially the same as the one given in the instant case. The court held, p 524:
" 'We find the law to be that where a pre-existing diseased condition exists, and where after trauma aggravating the condition disability and pain result, and no apportionment of the disability between that caused by the pre-existing condition and that caused by the trauma can be made, in such case, even though a portion of the present and future disability is directly attributable to the pre-existing condition, the defendant, whose act of negligence was the cause of the trauma, is responsible for the entire damage. Owen v Dix, 210 Ark 562, 196 SW2d 913, Wise v Carter, 119 So 2d 40 (Fla Civ App, 1960).’
"While this holding has been followed in a number of other jurisdictions, there is no dispositive Michigan case. We hold that, based on an examination of relevant Michigan case law, the challenged instruction accurately states the policy of this jurisdiction and was correctly given. It has long been established that a wrongdoer takes an injured person as he finds him, and, that, if the defendant’s wrongful conduct is proved by a preponderance of the evidence to be a proximate cause of the aggravation of a latent disability, he is liable for such aggravation. Schwingschlegl v City of Monroe, 113 Mich 683; 72 NW 7 (1897); 2 Restatement of Torts 2d, § 461, p 502; 2 Harper and James, The Law of Torts, § 20.3, p 1127. More significant is the policy of this jurisdiction as to the apportionment of the burden for uncertainty of damages. As the trial court noted in the second emphasized portion, uncertainty as to causation should be resolved in favor of the victim.
"This has long been the law of this jurisdiction. Allison v Chandler, 11 Mich 542, 553-554 (1863), Grant v National Acme Co, 351 F Supp 972, 981 (WD Mich 1972). This policy does not, as defendant claims, remove from a plaintiff the burden of showing that the negligence of the defendant was the proximate cause of the injury, Schwingschlegl v City of Monroe, supra. It merely gives the benefit of any doubt in determining, damages to the party whom the jury has found to have been wronged.” (Emphasis added.) (Footnote omitted.)

In the instant case, this instruction should have been given. A review of the testimony at the trial indicates that the August 2, 1973, accident caused aggravation of pre-existing diseases and weaknesses of plaintiff.

As to the depression and anxiety, plaintiff’s three children testified that their mother had experienced mental problems in the past which primarily resulted from plaintiff’s marital problems. However, they stated that plaintiff was on her way to recovery before the accident, but that after the accident their mother became very depressed. Doctors Danto and Essler testified that prior to the accident plaintiff used a very active lifestyle as a defense mechanism to combat her depression. However, after the accident plaintiff was no longer able to maintain this active lifestyle which resulted in an aggravation of her condition causing chronic depression.

As to the claimed back injury which required a lumbar laminectomy, the testimony of the lay witnesses was that plaintiff never complained of back pain before the accident but did begin to complain of pain within a day or two after the accident. Dr. Farbman testified that x-rays of plaintiff’s back showed degenerative changes in the spine which have occurred over an approximate 10-year period. Dr. Latimer testified that on and off back and leg pains could be caused by degenerative changes or arthritis. Thus, it appears that plaintiffs back problems after the accident could have stemmed from the arthritis alone or an accident-caused aggravation of the arthritis, or the accident-caused nerve root impingement alone. As with the mental problems, it was the province of the jury to determine which of these was the true situation.

In refusing to give the requested jury instructions, the trial judge removed these determinations from the jury. Refusal to give a requested instruction which states the applicable law and is supported by the evidence is error. AAMCO Automatic Transmissions, Inc v Motor Trans, Inc, 45 Mich App 539, 543; 207 NW2d 156 (1973), lv den, 389 Mich 817 (1973), Nowicki v Suddeth, 7 Mich App 503, 511; 152 NW2d 33 (1967). If the error might well have altered the result, or is one without which this Court can say the result might well have been different, the error is reversible. Rouse v Gross, 357 Mich 475, 481-482; 98 NW2d 562 (1959), Gapske v Hatch, 347 Mich 648, 659; 81 NW2d 337 (1957). In the case at bar, applying these tests, the error was reversible and requires a new trial.

Reversed and remanded for a new trial. Costs to plaintiff.


source: Caselaw Access Project

author: J. H. Gillis, P. J. N. J. Kaufman, J.

license: Public Domain

text:
    PEOPLE v WRIGHT
    Docket No. 77-2166.
    Submitted May 3, 1978, at Lansing.
    Decided June 20, 1978.
    Lawrence H. Wright was convicted, on his plea of guilty, of criminal sexual conduct in the first degree and was sentenced to a prison term of 10 to 30 years, Washtenaw Circuit Court, Patrick J. Conlin, J. Defendant appeals alleging that the trial court erred in failing to inform him of the minimum sentence that could be imposed for the crime charged. Held:

    There was no duty to inform the defendant of the minimum sentence because the crime charged carried no mandatory minimum.
    Affirmed.
    N. J. Kaufman, J., concurred. He would agree that the trial court was under no duty to inform the defendant but believes that the better practice would be to explain to a defendant prior to accepting his plea that while the crime charged does permit probation to be imposed, if probation is not granted, the minimum sentence will be a term of years of imprisonment.
    Opinion of the Court
    1. Criminal Law — Plea of Guilty — Sentences—Minimum Sentence —Duty to Inform.
    A trial court is under no duty to inform a defendant, prior to accepting the defendant’s plea of guilty, of the minimum sentence that can be imposed for a crime charged where the crime charged carries no mandatory minimum sentence.
    Concurrence by N. J. Kaufman, J.
    2. Criminal Law — Plea of Guilty — Sentences—Minimum Sentence —Probation—Advising Defendant.

      Prior to accepting a defendant’s plea of guilty to a charged crime which has no mandatory minimum sentence, the trial court

      should explain to the defendant that if probation is not imposed the minimum sentence would be a term of years imprisonment.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law § 487.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.

      Fulton B. Eaglin, for defendant on appeal.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   J. H. Gillis, P. J.

On September 20, 1976, defendant pled guilty to criminal sexual conduct in the first degree, contrary to MCL 750.520b; MSA 28.788(2), in Washtenaw County Circuit Court. He was subsequently sentenced to a prison term of 10 to 30 years and now appeals as of right.

Defendant contends that the trial court erred in failing to inform him of the minimum sentence that can be imposed for the crime charged in the instant matter.

GCR 1963, 785.7 provides in part.

"A defendant may plead guilty or nolo contendere only with the court’s consent. Prior to accepting the plea, the court shall personally carry out subrules 785.7(1)(4).
"(1) Speaking directly to the defendant, the court shall tell him;
"(d) the mandatory minimum prison sentence, if any, for the offense.” (Emphasis supplied.)

The crime charged in the instant case, criminal sexual conduct in the first degree, carries no mandatory minimum sentence.

"In all prosecutions for crimes or misdemeanors, except murder, treason, and robbery while armed, where the defendant has been guilty upon verdict or plea, and where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer”. MCL 771.1; MSA 28.1131.

Accordingly, the trial judge was under no duty to advise defendant of any minimum sentence. See People v McKnight, 72 Mich App 282; 249 NW2d 392 (1976), lv den, 399 Mich 848 (1977), and Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

Affirmed.

D. E. Holbrook, J., concurred.

N. J. Kaufman, J.

(concurring). I concur separately because I wish to note that while the crime charged does permit probation to be imposed, if probation is not granted, the minimum sentence would be a term of years imprisonment.

I believe the better practice would be to explain the foregoing to a defendant prior to accepting a guilty plea. I believe that would comport with the intent and spirit of GCR 1963, 785.7.


author:
N. J. Kaufman, J.
      Bashara, J.

text:
    PEOPLE v LEVERETTE
    Docket No. 77-2364.
    Submitted April 12, 1978, at Detroit.
    Decided June 20, 1978.
    Leave to appeal applied for.
    Karl Leverette was convicted of possession of heroin, Recorder’s Court of Detroit, Susan D. Borman, J. Defendant appeals. Held:

    The defendant’s conviction is reversed because the prosecutor, in his closing argument, impermissibly referred to the defendant’s unemployment thereby seeking to have the jury draw an inference that the defendant’s money must have come from criminal activities.
    Reversed and remanded.
    Bashara, J., dissented. He would hold (1) that the description in the search warrant of items to be seized, which concluded with the statement "to include items to prove residency” did not make the warrant general in nature, (2) the trial court’s instruction that the jury could infer that an unproduced res gestae witness’s testimony would be unfavorable to the prosecution was an adequate remedy for the prosecution’s failure to produce the witness, (3) the admission into evidence of a photograph of the defendant holding a card on which was an unidentified powdery substance was not an abuse of discretion where it was admitted on cross-examination of the defendant, and not as a part of the prosecution’s case in chief, and the defendant, in his testimony, had identified the time and place of the photograph and had identified the substance, (4) the defendant was not denied his right to a speedy trial, despite a 23 month delay between arrest and trial, where the defendant had failed to appear when the docket conference was called and when the case was first called for trial, and (5) the prosecutor’s brief reference in closing argument to the defendant’s unemployment was not prejudicial error where the defendant had stated on direct examination that he was unemployed and the statement by the prosecutor was never completed because of the defendant’s objection. He would affirm the conviction.

      References for Points in Headnotes
    [1, 2] 75 Am Jur 2d, Trial §§ 293-295.
    Counsel’s reference in criminal case to wealth, poverty, or financial status of defendant or victim as ground for mistrial, new trial, or reversal. 36 ALR3d 839.
    [3] 68 Am Jur 2d, Searches and Seizures § 82.
    [4] 75 Am Jur 2d, Trial § 771.
    [5] 29 Am Jur 2d, Evidence §§ 785, 788.
    Authentication or verification of photograph as basis for introduction in evidence. 9 ALR2d 899.
    [6] 21 Am Jur 2d, Criminal Law § 253.
    Waiver or loss of accused’s right to speedy trial. 57 ALR2d 302.
    [7] 75 Am Jur 2d, Trial §§ 290, 291.
    Counsel’s reference in criminal case to wealth, poverty or financial status of defendant or victim as ground for mistrial, new trial, or reversal. 36 ALR3d 839.

      Opinion op the Court
    1. Criminal Law — Prosecutors—Closing Argument — Poverty— Motive — Presumption of Innocence.
    There is no law against poverty and our system of justice will not countenance a prosecutor’s modus operandi which effectively enacts such a law; once it is accepted that impoverished persons have a greater motive to commit crimes than the well-to-do, a two-tiered system of justice is established and the presumption of innocence is demolished pro tanto.

      2. Criminal Law — Prosecutors—Closing Argument — Dependant’s Unemployment — -Instructions to Jury — Prejudice.
    A defendant’s conviction should be reversed where a prosecutor, in his closing arguments, inferred that because a defendant was unemployed but yet was able to participate in activities requiring money, the money needed must have come from criminal activities; the defendant’s failure to request a curative instruction in response to the improper remarks does not bar the reversal because a curative instruction would not have overcome the prejudicial effect of the argument.
    Dissent by Bashara, J.
    3. Searches and Seizures- — Constitutional Law — Search Warrants — Specificity op Warrant — Items to Prove Residency.

      The phrase "to include items to prove residency” in a search warrant to describe items to be seized in a drug raid did not make the warrant violative of the United States Constitution by making the warrant general in nature (US Const, Ams IV, XIV).

      4. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Instructions to Jury — Inferences.

      An instruction to a jury that the jury may infer that an unproduced witness’s testimony would be unfavorable to the prosecution is an adequate remedy where a res gestae witness has not been produced by the prosecution.

    5. Criminal Law — Evidence—Photographs—Admissibility of Evidence-Relevance — Heroin—Possession—Intent.

      Allowing a prosecutor during the cross-examination of a defendant to use a photograph of the defendant holding a container and a card upon which was a powdery substance and admitting it in as evidence at the defendant’s trial on a charge of possession of heroin was not an abuse of discretion where the defendant, in his testimony, had identiñed the time and place at which the photograph was taken and also had stated that the substance shown in the picture was lactose and that he prepared the lactose for mixing with heroin, in preparation for its sale, and where the defendant’s intent to possess the heroin found in his apartment was a material, disputed issue at trial, making evidence that he was selling heroin relevant to that intent and therefore admissible.

    6. Criminal Law — Constitutional Law — Speedy Trial.

      A defendant’s allegation that he was denied his right to a speedy trial because 23 months elapsed between the date of arrest and the date of trial is without merit where the record reveals that the defendant failed to appear when the docket conference was called and when the case was ñrst called for trial, making it necessary on both occasions to issue a capias for defendant’s arrest.

    7. Criminal Law — Prosecutors—Closing Argument — Defendant’s Unemployment.

      A prosecutor’s brief reference in closing argument to a defendant’s unemployment was not prejudicial error where the defendant had stated on direct examination that he was unemployed and the statement by the prosecutor was never completed because of the defendant’s objection.

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

      Kenneth Lerner, for defendant on appeal.
    Before: T. M. Burns, P. J., and N. J. Kaufman and Bashara, JJ.
   N. J. Kaufman, J.

The facts are well-stated in the dissenting opinion. We concur in the results reached by the dissenting opinion except as to that portion dealing with the prosecutor’s remarks in closing argument. During closing argument, the following colloquy occurred:

’’[The prosecutor]: You heard the Defendant wasn’t working, but yet he was going to the track. * * * It’s a reasonable inference that the money that he was living on was coming from the sale * * *
"MR. RUTLEDGE [Defense Counsel]: I am going to object to that your Honor. Certainly not a reasonable inference can be drawn from the facts reduced [sic] in the case.
"THE COURT: I didn’t hear you.
"MR. RUTLEDGE: I am objecting to the Prosecutor’s statement that a reasonable inference is, that the money that Mr. Leverette lived on was garnered from the drug trade or something.
"THE COURT: I’ll sustain the objection.”

The inference that the prosecutor was seeking the jury to draw was that because defendant was unemployed, and yet was able to participate in activities requiring money, the money needed must have come from criminal activities. Significantly, had defendant been employed, the prosecutor would not have been able to posit the disputed inference.

"To permit routine proof of impecuniousness to establish the motive for a theft offense is unjustifiable unless we assume that wealth exerts a greater attraction on the poor than on the rich. But although the poor may be moved by their need, those with greater income may respond to the pangs of insatiable avarice. We reject the assumption that 'easy money’ is more alluring to the poor than to the prosperous.” People v Henderson, 80 Mich App 447, 453-454; 264 NW2d 22 (1978). (Footnote omitted.)

The legitimacy of legal systems in democratic countries is founded on the consent of the governed, consent which emanates from an intuitive belief that, as a whole, everyone is equal before the law. There appears to be a growing conviction among the underprivileged that, in fact, they are not equally treated. That impression, whether or not justified, strikes at the very foundation of our legal system. Judicial doctrines which provide concrete examples for that viewpoint should be scrutinized with the gravest distrust.

As noted in People v Henderson, supra at 454:

"It may be argued that we should permit proof of the origins of each person’s desire for money, whether it be want, or well-fed cupidity. However, greed would not readily be proved. Poverty would. Hence we cannot, consistent with equal treatment to the poor and the well-to-do, indulge ourselves in the fiction that the motive of each may be shown at trial. If we attempt to permit this proof on a routine basis it will, without doubt, further disadvantage those least able to defend themselves in the courts.
"This, the rule’s cost, is unwarranted by any resulting benefit. The motive for a theft offense seldom requires explanation. The motive is so pervasive that its proving will establish little more than the defendant’s typicality; such proof increases but little the likelihood that this defendant is guilty of the charged offense. If poor and rich share a common and obvious motive, then why prove poverty?”

The consequences of such prosecutorial argument have been eloquently stated by this Court:

"The prosecutor should be reminded, however, that there is no law against poverty, and that our system of justice will not countenance a modus operandi which effectively enacts such a law.” People v LaForte, 75 Mich App 582, 584; 256 NW2d 44 (1977), lv den, 402 Mich 853 (1978).
"Once we accept the notion that impoverished persons have a greater motive to * * * [commit crimes] than the well-to-do we effectively establish a two-tiered standard of justice and demolish pro tanto the presumption of innocence.” People v Ronald Green, 74 Mich App 601, 606; 254 NW2d 788 (1977).

In defense of the prosecutor’s remark in this case, it may be noted that it was short and not repeated after the trial court sustained defense counsel’s objection. However, to do other than reverse defendant’s conviction, would countenance a "one bite of the apple” rule for prosecutors, as long as it was a small bite. It cannot be seriously disputed that there are circumstances in which a short concentrated attack is more prejudicially devastating than a long, rambling exposition. Judge (now Justice) Levin expressed it best in People v Farrar, 36 Mich App 294, 299-300; 193 NW2d 363 (1971):

"Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial. A prosecutor who crosses a clearly defined line, and a trial judge who makes * * * [an inadequate] effort to stop him, have only themselves, not the appellate courts, to blame if a judgment of conviction is reversed and the case must be retried because of improper argument.” (Footnote omitted.)

It may be further acknowledged that no request for a curative instruction was made. Nevertheless, we fail to see that a curative instruction would help. As the United States Supreme Court noted in Bruton v United States, 391 US 123, 129; 88 S Ct 1620; 20 L Ed 2d 476 (1968), quoting from the dissenting opinion in Delli Paoli v United States, 352 US 232; 77 S Ct 294; 1 L Ed 2d 278 (1957), as well as from Krulewitch v United States, 336 US 440; 69 S Ct 716; 93 L Ed 790 (1949):

" 'The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.’ 352 US at 247. The dissent went on to say, as quoted in the cited note in Jackson [v Denno, 378 US 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964)], 'The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.’ Id. at 248. To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v United States, 336 US 440, 453: The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.’ ” (Footnote omitted.)

Without suggesting an improper motive on the part of the prosecutor, defendant’s conviction is reversed and this case is remanded for a new trial because the remarks set forth above are "offensive to the maintenance of a sound judicial system”. People v Sherman Hall, 77 Mich App 456, 461; 258 NW2d 517 (1977), citing People v Swan, 56 Mich App 22, 31-32; 223 NW2d 346 (1974), lv den, 395 Mich 810 (1975).

T. M. Burns, P. J., concurred.

Bashara, J.

(dissenting). Defendant appeals his conviction by a jury for possession of heroin, MCL 335.341; MSA 18.1070(41). He was arrested when police, pursuant to a search warrant, entered an apartment to execute the warrant.

As a result of the search, the police seized a quantity of powder, which later analysis disclosed as containing heroin, two guns, a photograph, a key, and other items allegedly used to prepare heroin for illicit sale. A pretrial motion to suppress the evidence and quash the information was made by defendant and denied.

Defendant contends that the warrant lacked a sufficiently particular description of the items to be seized, making the search violative of the fourth and fourteenth amendments to the United States Constitution. This claim stems from the concluding phrase in the description, which stated, "to include items to prove residency”.

We do not find that the foregoing phrase made the warrant general in nature, remitting the extent of the search to the discretion of the executing officers. Rather, the officers were restrained in the scope of their search to locating and seizing such items as rent receipts, a lease or rental agreement, mail envelopes showing the address of the premises and name of the addressee. These articles were necessary to establish the identity of the person maintaining possession of the contraband. Consequently, we conclude that the warrant did not authorize a general, exploratory examination of the defendant’s personal belongings so as to come within the proscription of the fourth amendment. See generally Andresen v Maryland, 427 US 463; 96 S Ct 2737; 49 L Ed 2d 627 (1976), Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971).

The other occupant of the apartment in which defendant was found was not indorsed or produced as a witness at trial by the prosecution. The trial court held that the witness was a res gestae witness and that the prosecution did not exercise due diligence in making the witness available at trial. At the conclusion of the case the trial court included in its jury instructions an instruction that the jury may infer that the witness’s testimony would be unfavorable to the prosecution. Defendant claims that this was an inadequate remedy for the loss of such valuable defense testimony.

The instruction given was substantially identical to that suggested in the Michigan Criminal Jury Instructions, modified to reflect a finding by the trial court as to the lack of due diligence. See CJI 5:2:14, People v Stephen, 31 Mich App 604; 188 NW2d 105 (1971), lv den, 384 Mich 843 (1971). That instruction adequately protects the defendant from false accusation by permitting the jury to surmise that the witness’s testimony would have been favorable to the defendant. See People v Bennett, 68 Mich App 446; 243 NW2d 15 (1976).

The photograph seized incident to the search depicted defendant holding a container and a card upon which was a powdery substance. It was held by the trial court to be inadmissible in the prosecutor’s case in chief, because the nature of the items shown in the picture could not be established. When the defendant testified, the prosecutor was allowed to use the photograph in his cross-examination and have it admitted into evidence. Defendant maintains that this was reversible error, since it permitted the prosecutor to adduce evidence that defendant was participating in the sale of narcotics, a crime other than that for which he was being tried.

In defendant’s testimony, he identified the time and place where the photograph was taken. He also stated that the substance shown in the picture was lactose, and that he prepared the lactose for mixing with heroin, prefatory to its sale.

We conclude that the trial court did not abuse its discretion in admitting the photograph into evidence. See People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974), lv denied, 394 Mich 772 (1975), People v Midgyett, 49 Mich App 663; 212 NW2d 754 (1973). Further, since defendant’s intent to possess the heroin found in the apartment was a material, disputed issue at trial, evidence that he was selling heroin was relevant to that intent and, therefore, admissible. MCL 768.27; MSA 28.1050, People v Peck, 39 Mich App 150; 197 NW2d 346 (1972).

Defendant also contends that he was denied his sixth amendment right to a speedy trial. The record discloses that approximately 23 months elapsed between the date of arrest and date of trial. However, the record also indicates that the defendant failed to appear when the docket conference was called and when the case was first called for trial. On both occasions it was necessary to issue a capias for defendant’s arrest. Under these circumstances, we conclude that the defendant’s claim is without merit. Cf. People v Chism, 390 Mich 104; 211 NW2d 193 (1973).

At trial, the prosecutor was permitted to use defendant’s two prior larceny convictions to impeach his credibility. The contention of defendant that this constituted reversible error is belied by reference to the record and the case of People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

Defendant further maintains that the prosecutor, in his closing argument, impermissibly referred to defendant’s unemployment to establish guilt. Although defendant’s objections to the statements were sustained and were interjected before the prosecutor could complete the statements, defendant urges that reversible error resulted because the trial court failed to give a cautionary instruction.

On direct examination, defendant stated that he was unemployed. However, in his cross examination testimony defendant admitted that by processing lactose he assisted in the preparation of heroin for subsequent sale.

Aside from the fact that the prosecutor was precluded by defendant’s objection from completing the statements concerning defendant’s connection with drug sales, I find that the tenor of the prosecutor’s argument was not such as to ascribe to defendant a proclivity for crime because of his unemployment. Compare People v Johnson, 393 Mich 488; 227 NW2d 523 (1975). Rather, the prosecutor was arguing in summation on the basis of testimony elicited from the defendant. Accordingly, I perceive no prejudicial error under the circumstances presented.

I would affirm defendant’s conviction.


author: Beasley, J.

text:
    BLANCHARD v MONICAL MACHINERY COMPANY
    Docket No. 77-2740.
    Submitted March 6, 1978, at Grand Rapids.
    Decided June 20, 1978.
    Robert Blanchard was injured on the job when he accidentally tripped an unguarded foot treadle causing an air-operated clamp to close on his thumb. The clamp was sold used to Mr. Blanchard’s employer on an "as is” basis by Monical Machinery Company, having been purchased from or consigned to it by American Store Equipment Corporation. Mr. Blanchard brought suit against Monical for negligence and breach of warranty. Monical filed a third-party complaint against Associated Indemnity Company, the employer’s workmen’s compensation insurance carrier, and American Store Equipment Corporation for contribution and indemnity on the theory that Monical acted only as agent for American and never owned the clamp. The Kent Circuit Court, George R. Cook, J., granted a directed verdict and judgment of no cause of action in favor of Monical and American on the basis of a lack of duty by Monical to the plaintiff. Plaintiff appeals and Monical and Associated Indemnity cross-appeal. Held:

    1. A seller of goods owes a general common-law duty to a user of the goods to exercise the reasonable care required of a reasonably prudent seller under the existing circumstances and that duty is not abrogated by the fact that the goods sold are used goods or that they are sold "as is”.
    2. The question of whether a reasonably prudent seller of a used air-operated clamp would be expected to or required to install a safety guard on the foot treadle and/or give warning to users that accidentally tripping the foot treadle would cause the clamp to close is a question for submission to the jury under a proper instruction; it is not one for determination by the judge as a matter of law.
    Reversed and remanded.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 849.
    [2] 63 Am Jur 2d, Products Liability § 122.
    [3] 53 Am Jur 2d, Products Liability § 53.
    Manufacturer’s or seller’s duty to give warning regarding product as affecting his liability for product-caused liability. 76 ALR2d 9.

      1. Appeal and Error — Directed Verdicts — Products Liability.
    The standard of appellate review in measuring the granting of a directed verdict for a defendant in products liability cases is whether, taking the evidence in a light favorable to plaintiff, a prima facie case of liability is established.
    2. Products Liability — Duty—Sellers—Used Goods — Disclaimers op Liability.
    A seller of goods owes a general common-law duty to a user of the goods to exercise the reasonable care required of a reasonably prudent seller under the existing circumstances and that duty is not abrogated by the fact that the goods sold are used goods or that they are sold "as is”.
    3. Products Liability — Duty—Jury Question.
    The question of whether a reasonably prudent seller of a used air-operated clamp would be expected or required to install a safety guard on the foot treadle and/or give warning to users that accidentally tripping the foot treadle would cause the clamp to close is a question for submission to the jury under a proper instruction; it is not one for determination by the judge as a matter of law.

      Dilley, Dewey & Waddell (by Jonathan S. Damon), for plaintiff Blanchard.

      Rhoades, McKee & Boer (by Ben T. Liu), for plaintiff Associated Indemnity Company.

      Hillman, Baxter & Hammond (by Joel E. Krissoff and Michael D. Wade), for defendant American Store Equipment Corporation.

      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendant Monical Machinery Company.
    Before: M. F. Cavanagh, P. J., and D. E. Holbrook and Beasley, JJ.
   Beasley, J.

On November 29, 1974, plaintiff, a 19-year-old employee of Stow Davis hired less than two weeks earlier, was injured in an industrial mishap when he accidentally tripped an unguarded foot treadle causing an air-operated clamp to close on his thumb.

The clamp, which had been manufactured prior to 1965, was allegedly sold to Stow Davis on an "as is” basis by defendant Monical in 1974. Defendant American Store Equipment Corporation had obtained the clamp in 1965 from a Massachusetts company and sold or consigned it to defendant Monical in 1971.

Plaintiff brought suit for damages against defendant Monical, claiming negligence and breach of warranty. Defendant Monical brought third-party complaints against Associated Indemnity Company, which was Stow Davis’s workmen’s compensation insurance carrier (Associated Indemnity was realigned as a third-party plaintiff by the trial court), and against American Store Equipment Corporation as third-party defendant for contribution and indemnity on the theory that Monical acted only as agent for American and that Monical never owned the clamp.

The case was tried before a jury; defendant Monical moved for a directed verdict after opening statements, after completion of plaintiff’s case and, when the parties rested, after all proofs were offered. The trial court denied the motion the first two times, but granted it the third time, saying that, under the facts, defendant Monical owed plaintiff no duty.

The standard of appellate review in measuring the granting of directed verdicts for defendants in product liability cases is whether, taking the evidence in a light favorable to plaintiff, a prima facie case of liability is established. If so, a motion for directed verdict should be denied. Only when all reasonable men would agree to facts which preclude liability, should a directed verdict be granted for defendant. We are not convinced that there were facts in the within case on which all would so agree.

Plaintiff claims defendant seller is liable for failure to install a safety guard- on or around the foot treadle and for failure to warn users of a possible danger in accidentally tripping the foot treadle. The trial court concluded that, as a matter of law, defendant did not owe plaintiff any duty. He said to require a seller, who sells an "ancient machine”, "as is”, to a knowledgeable furniture company that had its own safety engineer, to install a safety guard around the foot treadle and to warn users of a possible danger in accidentally tripping the foot treadle, would be an exercise of the absurd. It may well be that a jury will so conclude, but under the law, it is for the jury, not the judge, to so find.

Contrary to the trial judge’s conclusion, defendant seller owed a general duty to plaintiff user to exercise the reasonable care required of a reasonably prudent seller under the existing circumstances. Certainly, the age of the equipment and the condition it was in when it left defendant seller’s possession would be relevant factors in the jury’s determination of whether the duty owed plaintiff was breached. But, it is not the rule that, as a matter of law, used machinery dealers owe no duty to persons injured by their products.

The fact that defendant seller alleges that the clamp was merely held on consignment from American Store pending sale on a price agreeable to the latter, does not alter defendant seller’s duty to the ultimate purchaser, Stow Davis and its employee, the plaintiff. Nor can we find any reason to relieve defendant seller of his duty of care merely because he is dealing in used rather than new goods. There is no indication in the Uniform Commercial Code of an intention to completely relieve a seller of used goods of his duty of care to persons affected by the use of those goods. Nor have we been able to find authority elsewhere for so doing.

Further, the designation of the sale in the within case as being on an "as is” basis, does not relieve defendant seller of his duty of care. While disclaimers are generally not favored, the Uniform Commercial Code, recognizing that they have some utility in promoting free commerce, provides for such disclaimers in limited circumstances. However, whatever the impact of the UCC warranties and disclaimer attempted by defendant seller in the within case, it does not result in relieving defendant seller of his duty of care to plaintiff under the common law. Common law tort liability in Michigan is distinct from the warranty liabilities imposed by the Uniform Commercial Code, and may not be abrogated by the disclaimers permitted under the code.

The Michigan law of product liability was recently restated by our Supreme Court in Moning v Alfono, where the Court stated:

"It is well established that placing a product on the market creates the requisite relationship between a manufacturer, wholesaler and retailer and persons affected by use of the product giving rise to a legal obligation or duty to the persons so affected. A manufacturer owes the consumer an obligation to avoid negligent conduct. The obligation extends to persons within the foreseeable scope of the risk.” (Footnotes omitted.)

Thus, in summary, the standard of care required of defendant seller was that of a reasonably prudent seller under the existing circumstances. The ultimate question, therefore, was whether a reasonably prudent seller of a used air-operated clamp, manufactured prior to 1965, would be expected to or required to install a safety guard on the foot treadle and/or give warning to users that accidentally tripping the foot treadle would cause the clamp to close.

This question was not one for determination by the trial judge as a matter of law; on the contrary, it was a question for submission to the jury under a proper instruction. Accordingly, we hold that the trial court erred in finding that defendant seller owed no duty of care to plaintiff. The directed verdict should not have been granted.

In addition, plaintiff claims the trial court erred in denying plaintiff opportunity to offer so-called OSHA regulations in evidence.

After careful consideration, the trial court decided that OSHA regulations were not relevant to determination of the standard of conduct here owed by defendant to plaintiff. On appeal, the question is whether the trial court’s finding that OSHA regulations were inadmissible constituted an abuse of discretion. Under the circumstances of this case, we decline to find that the trial court’s ruling was an abuse of discretion.

Consequently, we reverse the directed verdict and remand for trial.

In so ruling, it goes without saying that we grant the relief sought by Monical Machinery Company, as cross-appellant, on its cross-appeal. If, on trial on the merits, plaintiff Robert Blanchard prevails against defendant-appellee, Monical Machinery Company, then, of course, Monical Machinery Company is entitled to adjudication of its third-party complaint against third-party defendant, American Store Equipment Company. Therefore, the directed verdict in favor of American Store Equipment Company and against Monical Machinery Company on the third-party complaint asserted by the latter against the former, is similarly reversed and the claim on the third-party complaint remanded for trial on the merits.

In conclusion, the directed verdict in favor of defendant Monical Machinery Company and against plaintiff Robert Blanchard is reversed and the case remanded for trial. Similarly, the directed verdict on the third-party complaint is reversed and that claim remanded for trial.

       Defendant Monical claimed the clamp was held by it on a consignment basis for sale at a price agreeable to American Store. Plaintiff claimed Monical "sold” the clamp to it.

       The court set forth its reasons as follows:
      "THE COURT: * * * In this case what can we tell the jury about what duty this defendant under these facts owed this plaintiff? We have asked counsel for authorities, and all counsel say there are none directly in point. Certainly, the Court has not found any in its own limited research. In any event, we avoid the temptation to lay down some new concept of law embracing all dealers in used machines. That formulation, the law wisely leaves to our appellate court. We simply say that under the facts in this case we find that this defendant owed this plaintiff no particular duty. Without duty there can be no breech [sic], and without breech [sic] there can be no legal-injury, and without injury no damages.
      "The defendant in this case did all the law required of him. He sold an ancient machine to a knowledgeable, sophisticated and experienced furniture company that had its own safety department and its own safety engineer. The uncontradicted testimony is that Stow-Davis wanted the machine in an 'as is’ condition, and that it would assume the responsibility of its care, maintenance and operation. To expect this defendant under these facts to put on safety equipment or warn Stow-Davis of possible dangers of the machine would be an exercise of the absurd.
      "From the facts comes the law, and in our view the facts in this case require a directed verdict for the defendant and the third-party defendant. The testimony of the witnesses, MacMillen, Worsley and Logie compels this result even though we view all the testimony in the light most favorable to plaintiff. Each defendant may tax costs.”

        Hastings Mutual Ins Co v Croydon Homes Corp, 73 Mich App 699; 252 NW2d 558 (1977).

       MCL 440.2316; MSA 19.2316.

        Parish v B F Goodrich Co, 395 Mich 271, 290; 235 NW2d 570 (1975). Discussing the effect of the UCC on common law warranties, Justice Williams, in his dissenting opinion, stated:
      "The warranty given birth by the courts extends protection well beyond that given by the code’s warranties. Not only is the requirement of privity inapplicable but the manufacturer may not rely on the affirmative defenses of lack of notice, disclaimer of warranties, limitations of remedies as he can under the code. When courts talk about warranty based on law, not the contractual agreements, and hold that a manufacturer may not avail himself of the defense provided by the code, it is quite evident that they are not talking about a warranty based upon the code.”
      The Parish majority also recognized that the product liability of a manufacturer, not in direct dealing with the consumer, has been imposed by the courts with little or no regard as to whether there is an agreement between the parties and in the face of attempts by some manufacturers to disclaim liability. The majority stated:
      "While some of the concepts (e.g., implied warranty) developed by the courts in creating the consumer’s right of direct action against the manufacturer have been enacted into statute, the UCC draftsmen have acknowledged that the consumer’s remedy is not statutory, but essentially a judicial development which the courts should be free to develop further.” 395 Mich at 280.

        See also Piercefield v Remington Arms Co, Inc, 375 Mich 85, 99-100; 133 NW2d 129 (1965), Browne v Fenestra, Inc, 375 Mich 566, 571; 134 NW2d 730 (1965).

        Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).

       1970-1971 AACS R 408.12351, 408.12353, 408.12716(3), 408.12716(4) and 408.12770. See also, 29 CFR 1910.212, 1910.213(b)(6), 1910.213(r)(4) and 1910.217(b)(4).

       The matter was briefed and argued before the trial court ruled.

        Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959).


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

text:
    PEOPLE v MAKIDON
    Docket No. 77-2802.
    Submitted March 15, 1978, at Lansing.
    Decided June 20, 1978.
    Mitchell Makidon was convicted of rape in Shiawassee Circuit Court, James M. Teahen, Jr., J., and appeals by leave granted. Defendant contends that the trial court erroneously failed to exercise its discretion to exclude evidence of the defendant’s prior felony convictions, and that his sentence of 30 to 40 years violates the Supreme Court ruling that a minimum sentence may not be longer than two-thirds of the maximum. Held:

    1. A trial court need not specifically state that it is exercising its discretion when ruling on a motion to suppress evidence of prior convictions. There was no error where it is clear from the record that the judge was aware that he had the discretion to suppress the evidence and where the record reveals no abuse of that discretion.
    2. The rule limiting the minimum sentence under the indeterminate sentencing act to two-thirds of the maximum does not apply in the case of a repeat felony offender.
    Afiirmed.
    Bashara, J., concurred, except on the issue of sentencing. He would hold that the two-thirds rule applies regardless of whether the defendant is a repeat offender, and would remand for modification of the sentence.
    Opinion of the Court
    1. Criminal Law — Evidence—Prior Convictions — Impeachment— Judge’s Discretion.
    A trial judge may refuse to permit impeachment of a criminal defendant by use of evidence of prior convictions, and it is error for a judge to fail or refuse to recognize this discretionary power.
    References for Points in Headnotes
    [1] 81 Am Jur 2d, Witnesses § 569.
    [2] 75 Am Jur 2d, Trial §§ 30, 177
    [3, 4] 21 Am Jur 2d, Criminal Law §§ 540, 581, 592, 614.

      2. Criminal Law — Evidence—Prior Convictions — Suppression of Evidence — Judge’s Discretion.
    There is no need for a trial court to specifically state that it is exercising its discretion in denying a defendant’s motion to suppress evidence of prior convictions where it is clear from the record that the court was aware that it had the discretion to allow or to suppress the evidence and where a review of the record establishes that there was no abuse of discretion.
    3. Criminal Law — Sentencing—-Indeterminate Sentence — Repeat Offenders.
    The rule which provides that a minimum sentence, under the indeterminate sentencing act, must not exceed two-thirds of the maximum does not apply to a repeat felony offender.
    Concurrence in Part, Dissent in Part by Bashara, P. J.
    4. Criminal Law — Sentencing—Indeterminate Sentence — Repeat Offenders.

      The fact that a defendant is a repeat felony offender does not prevent applicability of the rule that under the indeterminate sentencing act a minimum sentence should be no longer than two-thirds of the maximum.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald D. Lostracco, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Hoschner & Kurrle, for defendant on appeal.
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   M. J. Kelly, J.

Defendant was convicted of rape, MCL 750.520; MSA 28.788, by a Shiawassee County Circuit Court jury on April 13, 1972. He was sentenced on May 8, 1972, to a prison term of 30 to 40 years. He appeals by leave granted September 22, 1977.

Defendant raises three issues on appeal. Our disposition of this case renders a discussion of the first issue unnecessary.

Defendant argues that the trial judge failed to exercise his discretion to exclude evidence of defendant’s prior criminal convictions to be introduced at trial to impeach defendant’s credibility. The present case was tried prior to People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), which held that a trial judge may refuse to permit impeachment by prior convictions, and that it is error to fail or refuse to recognize this discretionary power. The same rule had been adopted, however, by this Court in People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), prior to the instant trial.

The trial court was informed by both the defendant and the prosecutor that it was within its discretion to allow reference to prior convictions. The court was also informed of the nature of the prior convictions. Cf. People v Killebrew, 61 Mich App 129; 232 NW2d 329 (1975), lv den, 395 Mich 817 (1975).

Even though the trial court did not "positively indicate and identify its exercise of discretion” in the matter, People v Cherry, supra, at 261, it is clear from the record that the judge was aware that he had discretion. There is no need for the court to specifically state that it is exercising discretion. People v Pleasant, 69 Mich App 322, 328; 244 NW2d 464 (1976), lv den, 399 Mich 831 (1977). A review of the motion to suppress reference to prior convictions establishes that there was no abuse of discretion. Cf. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978).

Even if we were to assume that the trial judge did err by not indicating that he was acting in exercise of his discretion, the overwhelming evidence presented at trial indicates that any error was harmless. People v Killebrew, supra. See People v Johnson, 46 Mich App 212; 207 NW2d 914 (1973). The complainant’s testimony was very strong, as was that of the neighbors, and the physical evidence connecting defendant with the crime was abundant. Under the facts presented reversal is not required.

As to defendant’s final argument that he is entitled to a modification of his 30 to 40 year sentence in accordance with the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), there is a split on this Court.

Defendant is a repeat felony offender, and the Tanner two-thirds rule is inapplicable for the reasons set forth in People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978), lv held in abeyance, (Docket #61014, Apr. 5, 1978). But see People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976).

Our disposition of this case renders any error in the four-year delay in appointment of appellate counsel harmless, since the defendant has not been prejudiced.

Affirmed.

Allen, J., concurred.

Bashara, P.J.

(concurring in part, dissenting in part). I am in concurrence with my brethren on all issues raised except that of the applicability of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The fact that defendant is a repeat felony offender does not prevent Tanner from controlling.

In Tanner, the Supreme Court specifically stated:

"Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act.
"Of course this holding has no application to sentencing under statutes by which the only punishment prescribed is imprisonment for life, or those providing for a mandatory minimum. See, MCLA 769.9.; MSA 28.1081.” 387 Mich at 690. (Emphasis supplied.)

This construction of the indeterminate sentence act was followed in People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), in which I concurred.

Frankly, the above quote from Tanner appears to fly directly in the face of the specific statutory language of the indeterminate sentencing act. MCL 769.8; MSA 28.1080. That statute clearly indicates that it applies only to persons "convicted for the first time”. However, Tanner was decided long after the passage of the act and we are bound to follow the mandates of our Supreme Court.

I would, therefore, affirm the defendant’s conviction but remand for modification of sentence under People v Tanner, supra.


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

text:
    OTTENWESS v HAWKEYE SECURITY INSURANCE COMPANY
    Docket No. 77-2819.
    Submitted February 8, 1978, at Grand Rapids.
    Decided June 20, 1978.
    Leave to appeal applied for.
    Michael Ottenwess, an employee of Wickes Lumber Company, was crushed to death while examining a malfunction in the mechanism of a dump truck owned by his employer. Deborah Ottenwess (Schroeder), Michael’s spouse, individually and as next friend of her minor children, brought actions against Hawkeye Security Insurance Company as decedent’s insurer to collect no-fault automobile insurance benefits and against Travelers Insurance Company as no-fault insurer of decedent’s employer Wickes Lumber Company. Summary judgments for both defendants in Kent Circuit Court, George R. Cook, J. Plaintiff appeals. Held:

    The Worker’s Disability Compensation Act’s exclusive remedy provision restricts recovery of benefits from an employer for job-related injuries to workmen’s compensation and prevents recovery of no-fault automobile benefits from the employer or his no-fault insurer; therefore, Travelers Insurance is not liable and summary judgment was proper as to Travelers. The exclusive remedy provision is inapplicable, however, where the no-fault claim is brought not against the decedent’s employer or the employer’s insurer but against the insurer of the operator of the vehicle which caused the job-related injury. Hawkeye Insurance fits into this category and on the basis of a priority of liability statute is liable for no-fault benefits. Summary judgment was erroneously granted to Hawkeye.
    Affirmed as to Travelers, reversed as to Hawkeye.
    Allen, J., in a dissenting opinion would hold that the legislative intent expressed in the automobile no-fault statute was to allow an employee to sue his employer’s no-fault carrier where the employee was injured while occupying a vehicle owned by the employer rather than to hold the no-fault insurer of the employee liable. The Legislature also intended that the employee be paid workmen’s compensation benefits and, to the extent the no-fault recovery exceeded workmen’s compensation due, the balance to be recoverable in no-fault benefits.

      References for Points in Headnotes
    [1-3] 81 Am Jur 2d, Workmen’s Compensation §§ 50, 51.
    [3-6] New Topic Service, No Fault Insurance § 22.

      Opinion op the Court
    1. Workmen’s Compensation — Benefits—Exclusive Remedy — Statutes.
    Workmen’s compensation benefits are the exclusive remedy against an employer where an employee’s injury is within the scope of the Worker’s Disability Compensation Act (MCL 418.131; MSA 17.237[131]).
    2. Workmen’s Compensation — Benefits—Tort—Contract—Exclusive Remedy — Personal Injury — Course of Employment— Statutes.
    Applicability of the exclusive remedy provision of the Worker’s Disability Compensation Act turns not upon the characterization of an asserted cause of action as tort or contract but upon whether the employee has a right to recover benefits under the act; an employee has a right to compensation where he receives a personal injury arising out of and in the course of his employment (MCL 418.131, 418.301; MSA 17.237[131], 17.237[301]).
    3. Insurance — Automobiles—No-Fault—Workmen’s Compensation —Benefits—Exclusive Remedy.
    The exclusivity provision of the Worker’s Disability Compensation Act bars recovery of no-fault benefits from an employer or his automobile liability insurer where an employee is entitled to worker’s compensation.
    4. Insurance — Automobiles—No-Fault—Workmen’s Compensation —Exclusive Remedy — Statutes.
    The insurer of an employee who is injured while operating an employer-owned vehicle is liable in an action for automobile no-fault insurance benefits to the employee under the priority provisions of the no-fault statute; such an action is not barred by the Worker’s Disability Compensation Act’s exclusivity provision where the operator of the vehicle was neither the employer nor the employer’s insurer (MCL 500.3114[4]; MSA 24.13114[4]).
    Dissent by Allen, J.
    5. Statutes — Automobiles—No-Fault Insurance — Workmen’s Compensation — Benefits—Legislative Intent — Statutes.

      The legislative intent, as expressed in the no-fault automobile

      insurance statute, was to allow an employee to sue his employer’s no-fault carrier in situations where the employee was injured while occupying a vehicle owned by the employer and to allow both workmen’s compensation recovery and no-fault recovery (MCL 500.3U4[3j; MSA 24.13U4[3j).

    6. Insurance — Automobiles—Liability—Insurer of Vehicle — Insurer of Operator — Statutes.

      The personal protection claim of an employee suffering accidental bodily injury while an occupant of a motor vehicle owned by the employer should be brought against the owner or registrant of the vehicle and his insurer rather than the operator of the vehicle and his insurer (MCL 500.3114[3j; MSA 24.13114[3j).

      Hillman, Baxter & Hammond (by Michael D. Wade), for plaintiff.

      Linsey, Strain & Worsfold, P. C., for Hawkeye Security Insurance Company.

      Wheeler, Upham, Bryant & Uhl (by Susan B. Flakne), for Travelers Insurance Company.
    Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   R. B. Burns, J.

Plaintiff, decedent’s spouse, instituted suit to collect no-fault automobile insurance benefits from decedent’s insurer, Hawkeye Security Insurance Company (Hawkeye), and decedent’s employer’s insurer, Travelers Insurance Company (Travelers). The trial court granted both defendants summary judgment on the authority of Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), and plaintiff appeals.

The decedent, Michael Ottenwess, was an employee of Wickes Lumber Company. While examining or attempting to repair a malfunction in the mechanism of a company dump truck, Ottenwess was crushed to death when the dump box suddenly came down upon him, trapping him between the box and the frame of the truck. The malfunction came to Ottenwess’s attention while he was making deliveries with the truck in the regular course of his employment. He had just exited the cab and was standing on or next to the dump box when the incident occurred. Following the accident, plaintiff and her two minor children received worker’s compensation benefits from Wickes Lumber Company’s compensation carrier.

I. Liability of Employer’s No-Fault Insurer

Defendant Travelers asserts that the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), prevents recovery by plaintiff, relying upon Mathis v Interstate Motor Freight System, supra. Except for the fact that in that case the employer was self-insured, Mathis is identical to the situation before us as far as Travelers is concerned. There, plaintiff was injured while unloading freight from his employer’s semi-trailer. He drew worker’s compensation benefits and applied for benefits under the no-fault act. The trial judge held that worker’s compensation benefits were plaintiff’s exclusive remedy. In a single sentence this Court affirmed:

"The Supreme Court in Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1, 4 (1975), said: 'When an employee’s injury is within the scope of the act, workmen’s compensation benefits are the exclusive remedy against the employer.’ Affirmed.” Mathis v Interstate Motor Freight System, supra at 603; 252 NW2d at 842.

Plaintiff seeks to distinguish Mathis on the grounds that, there, the employer was a no-fault self-insurer and as such would pay no-fault benefits for an injury in tort, whereas in the instant case the employer is a contractual insurer for whom no-fault benefits are paid ex contractu. Plaintiffs distinction is supported by the recent case of Hawkins v Auto Owners Ins Co, 83 Mich App 225; 268 NW2d 534 (1978). That case was factually indistinguishable from the instant case, and the Court said:

"The defendant in the instant case, unlike the defendant in Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), is not plaintiff’s employer as defined in § 131. Consequently, that exclusive remedy provision does not operate to bar the instant circuit court action. Therefore, accelerated judgment, based on § 131, was improper and must be reversed.
"The statutory schemes of worker’s disability compensation and no-fault motor vehicle insurance provide an employee, such as the plaintiff, who is injured in the course of employment while occupying an employer-owned motor vehicle covered by a no-fault policy issued by an insurance company, at least two potential avenues of recovering compensation. The employee may obtain worker’s disability compensation benefits and also may obtain no-fault benefits.”

We do not agree with the distinction made in Hawkins, because it conflicts with the no-fault act’s provision that a self-insurer "has all the obligations and rights of an insurer under this chapter”. MCL 500.3101(4); MSA 24.13101(4). The liabilities of self-insurers and insurers must be coextensive. Under Hawkins, the liability of insurers is greater than that of self-insurers. For the purpose of the application of the exclusive remedy provision of the Worker’s Disability Compensation Act, an employer’s no-fault insurer must be considered the alter ego of the employer.

Nor do we agree with plaintiffs tort-contract distinction. Applicability of the exclusive remedy provision of the Worker’s Disability Compensation Act turns not upon the characterization of the asserted cause of action as tort or contract, but upon whether the employee has a right to recover benefits under the act. MCL 418.131; MSA 17.237(131). An employee has a right to compensation where he "receives a personal injury arising out of and in the course of his employment”. MCL 418.301; MSA 17.237(301).

Suit is not barred against employers for all tort, Crawley v General Motors Truck Corp, 259 Mich 503; 244 NW 143 (1932), Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971), Moore v Federal Department Stores, Inc, 33 Mich App 556; 190 NW2d 262 (1971), or all contract, Milton v Oakland County, 50 Mich App 279; 213 NW2d 250 (1973), damages, but where the above criteria for recovery of worker’s compensation are applicable, suit is barred even on a contract theory, Neal v Roura Iron Works, Inc, 66 Mich App 273; 238 NW2d 837 (1975), Milton v Oakland County, supra. Since plaintiff was entitled to, and did in fact receive, worker’s compensation, further recovery cannot be had by labeling the asserted right thereto "contract”.

Mathis is therefore not distinguishable as to Travelers’ alleged liability, and controls the resolution of this issue. However, plaintiff has advanced arguments that the exclusivity provision of the Worker’s Disability Compensation Act does not bar recovery under the no-fault act. These arguments are not met by the brief opinion in Mathis. We have therefore reexamined the issue, and determine that Mathis was correctly decided.

The worker’s compensation exclusivity provision does not itself contain an exception to permit recovery of no-fault benefits, MCL 418.131; MSA 17.237(131), nor does the no-fault act contain an express partial repeal of the worker’s compensation exclusivity provision.

"Repeals by implication are not favored. The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold to the contrary.” Couvelis v Michigan Bell Telephone Co, 281 Mich 223, 225; 274 NW 771, 772 (1937).
" 'The principle that the law does not favor repeals by implication is of especial application in the case of an important public statute of long standing, which should be shown to be repealed either expressly, or by a strong and necessary implication.’ 25 R.C.L. p. 920.” Attorney General, ex rel. Owen v Joyce, 233 Mich 619, 623; 207 NW 863, 864 (1926).

It is plaintiffs theory that subsection 3114(3) of the no-fault act clearly contemplates recovery by an employee of both worker’s compensation and no-fault benefits. This subsection provides:

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

Section 3114 is a priority provision, dictating which of several insurers will be liable in various circumstances. That subsection 3114(3) is only a priority provision, and was not intended to create additional substantive rights to recover, is apparent from the qualifying words "to which he is entitled”. Plaintiff is not entitled to recover because such recovery is barred by the exclusivity provision of the Worker’s Disability Compensation Act.

It is asserted that the use of the words "to which he is entitled” is an obscure way for the Legislature to indicate that it did not intend recovery by an employee against his employer’s no-fault insurer where he is entitled to worker’s compensation. However, the exclusivity provision is a clear expression of such intent. The exclusivity provision was amended October 30, 1972, and the no-fault act was passed October 31, 1972. The Legislature was surely aware of the potential overlap of the two acts, and had it intended to effectuate a partial repeal of the exclusivity provision, it would have done so explicitly.

It is also asserted that if subsection 3114(3) is interpreted so as to apply only where an employee is using a company vehicle for personal business, not in the course of his employment, the subsection will apply to a situation which occurs so infrequently that it is illogical to assume the Legislature would have included the provision within the act. We are sure that thousands of employees have access to company vehicles for personal use. That the Legislature anticipated injuries arising in such situation is apparent from its inclusion of the employee’s spouse, and relatives domiciled within the household, within the subsection, for how many employees have their spouses and relatives riding with them in company vehicles in the course of their employment?

Finally, it is argued that the words "to which he is entitled” were inserted by the Legislature into the subsection to indicate the applicability of the deductions required by subsection 3109(1). That subsection provides that:

"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”

This explicit provision requiring the deductions from any policy benefits makes it unnecessary to add the words "to which he is entitled” to priority subsections to indicate the deductions shall be made. The only other priority subsection containing the words "to which he is entitled” is subsection 3114(2), which provides in part:

"A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the business of transporting passengers shall receive the personal protection insurance benefits to which the person is entitled from the insurer of the motor vehicle”. MCL 500.3114(2); MSA 24.13114(2). (Emphasis added.)

An operator of such a vehicle may be expected to be entitled to worker’s compensation from either his employer, as self-insurer, or from his employer’s insurer. If the words "to which he is entitled” refer to benefits minus subsection 3109(1) deductions, then why did the Legislature only use those words in subsections where an employee may not be entitled to any no-fault benefits due to the Worker’s Disability Compensation Act’s exclusivity clause?

Certainly legislative history indicates that among the deductions from benefits required by subsection 3109(1) is worker’s compensation benefits. But that deduction will not be applicable where an employee is not entitled to any benefits because of the exclusivity clause. Rather, such deductions for worker’s compensation only apply when the insurer owing benefits is not the employee’s employer or employer’s insurer.

We conclude that plaintiff has not only failed to show a clear legislative intention to effectuate partial repeal of the exclusivity provision, but that there is an indication of a contrary legislative intention to not permit recovery of no-fault benefits from an employer or his insurer where an employee is entitled to worker’s compensation benefits. The trial court did not err by granting summary judgment in favor of Travelers.

II. Liability of Employee’s No-Fault Insurer

Defendant Hawkeye also argues that Mathis bars recovery under the policy it issued plaintiff’s decedent. However, Hawkeye was neither the decedent’s employer nor employer’s insurer. The Worker’s Disability Compensation Act’s exclusivity provision is inapplicable. MCL 418.131; MSA 17.237(131). Mathis does not bar recovery against Hawkeye.

Subsection 3114(4) of the no-fault act provides:

"Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) The insurer of the owner or registrant of the vehicle occupied.
"(b) The insurer of the operator of the vehicle occupied.” MCL 500.3114(4); MSA 24.13114(4).

As we have seen, plaintiff cannot recover under subsection 3114(3) against Travelers because of the worker’s compensation exclusivity provision. Subsections 3114(1) and 3114(2) are patently inapplicable. Plaintiff’s decedent was killed while an occupant of the vehicle. See Nickerson v Citizens Mu tual Insurance Co, 393 Mich 324, 328-331; 224 NW2d 896, 898-899 (1975). Subsection 3114(4) therefore governs which insurer is liable. Recovery cannot be had under provision (a) because, again, Travelers is protected from liability by the exclusivity provision. Therefore, provision (b) establishes liability. Since Hawkeye is the insurer of the operator of the vehicle occupied, it is liable for no-fault benefits. Summary judgment was erroneously granted Hawkeye.

Judgment affirmed as to defendant Travelers; costs to defendant. Judgment reversed as to defendant Hawkeye and the case is remanded for trial on the merits; costs to plaintiff.

J. H. Gillis, P. J., concurred.

Allen, J.

(dissenting). As the only member of the instant panel who was not a member of the Mathis panel, I must dissent. In my opinion a common sense reading of § 3114(3) of the no-fault act and its legislative history clearly discloses that the Legislature intended to allow an employee to sue the employer’s no-fault carrier in situations where the employee was injured while occupying a vehicle owned by the employer.

In plain and simple English the statute reads:

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

I disagree with the majority that the above section is nothing more than a priority provision. To me it clearly authorizes employee recovery of benefits. The only problem or ambiguity is the phrase "to which he is entitled”. Travelers argues that the phrase was inserted in the statute to restrict recovery to those occasions where the employee was not within the scope of his employment at the time he was injured while occupying the employer’s vehicle. To this author, such a construction of the statute fails for three reasons:

First, it is obviously an obtuse and awkward way for the Legislature to express such an intent.

Second, so construed, the employer’s liability would, for practical purposes, be restricted to accidents involving a company car used by an employee with the employer’s permission for personal reasons or where an employee wrongfully uses the company car for personal business. This occurs so infrequently that somehow it seems illogical for the Legislature to have intended the language to include so incidental a situation.

Third, the legislative history of the bill discloses a more logical explanation for the limiting language "to which he is entitled”. The no-fault bill was first introduced in the Senate on June 2, 1971, as Senate Bill 782 and was referred to the Committee on Commerce. Section 9(1) provided that social security benefits to which the employee would be entitled because of accidental injury should be subtracted from the no-fault benefits otherwise payable for the injury. Section 18(1) stated that payment by the insurer would discharge "to the extent of the payment, the obligations of any * * * governmental agency” to the employee for "workmen’s compensation, unemployment compensation or disability benefits law or any similar law”. Section 14(3) was worded verbatim as appears in § 3114(3) quoted above, including the phrase "to which he is entitled”. Two conclusions emerge from the bill as it was first introduced. One, the Legislature clearly intended that, to the extent of the no-fault recovery actually made, workmen’s compensation benefits were permitted and if an award was received over and above the amount of compensation benefits due, the employee would also be paid such sums. In short, the Legislature intended that the employee be paid both workmen’s compensation benefits and, to the extent the no-fault recovery exceeded workmen’s compensation due, no-fault benefits. Two, the words "to which he is entitled” were intentionally used to cover the situation where social security benefits were to be deducted as mandated by § 9(1). In such a situation the injured employee would not be entitled to the entire award but instead would be entitled to the award minus social security benefits. The words "to which he was entitled” was a logical way to describe this situation.

On May 30, 1972, the Committee on Commerce reported out a substitute bill known as Senate Substitute 782. Section 18(1) was deleted but its basic provisions were added to § 9(1) which in the substitute bill was renumbered § 3109 and amended to state that all state or Federal benefits (not merely social security) should be subtracted from the no-fault benefits otherwise payable. In effect, the Commerce Committee was simplifying the original bill by placing, in a single section (§ 3109), the mandates which originally were included in two sections and by treating all government benefits, including workmen’s compensation benefits, as a deduct rather than as an obligation to indemnify. But the fact that workmen’s compensation benefits were moved from one bill section to another and were treated as deducts, in no wit detracts from the originally expressed intentions of the Legislature to allow both workmen’s compensation recovery and no-fault recovery. Obviously, in both the original bill and in the more simplified substitute bill the Legislature mandated recovery which is totally inconsistent with the exclusive remedy statute. Likewise, with all government benefits treated as deducts, the need for the words "to which he is entitled” became even more apparent. In my opinion, the history of the bill discloses an unambiguous intent to override any prohibitions which the exclusivity clause might make to no-fault recovery from the employer’s insurer. Additionally, the bill history reveals a more rational explanation for the words "to which he is entitled” than the explanation advanced in the majority opinion. Accordingly, I join in the result (though not in the reasons) in Hawkins v Auto Owners Ins Co, 83 Mich App 225; 268 NW2d 534 (1978).

I also disagree with the majority opinion holding that Hawkeye, the employee’s no-fault insurer, is liable for no-fault benefits under subsection 3114(4)." Deceased had just exited the cab and, while standing on or next to the truck, was in the process of repairing or examining the dump apparatus when the accident occurred. As such he was legally an occupant of his employer’s truck. Nickerson v Citizens Mutual Ins Co, 393 Mich 324, 328-330; 224 NW2d 896 (1975). The relevant statutory provisions governing recovery for injuries sustained while the person injured is an occupant of a motor vehicle appear in §§ 3114(3) and (4) of the statute. These read:

"(3) An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
"(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the vehicle occupied.
(b) The insurer of the operator of the vehicle occupied.” (Emphasis supplied.)

The narrow question involved is which of the two sections quoted above governs the situation in the instant case. It is my opinion that § (3) applied and § (4) does not. The italicized words eliminate the application of § (4). Section (4) cannot control because it covers cases where § (1) and § (3) are not applicable. But § (3) is applicable once one concludes, as I do, that Mathis is not controlling. This being so, there is no liability, not even secondary liability as to Hawkeye. Accordingly, I conclude that although the trial court may have assigned the wrong reasons, the grant of summary judgment in favor of defendant Hawkeye is without error.

       Senate Journal 1971, Vol 1, p 1000.

       "Sec. 18. (1) A personal protection insurer has the primary obligation to indemnify for the elements of loss as defined in sections 7 and 8 because of accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. Payment by such insurer of personal protection insurance benefits with respect to such injury operates to discharge, to the extent of the payment, the obligations of any person, organization, insurer or governmental agency to indemnify against such loss under any workmen’s compensation, unemployment compensation or disability benefits law or any similar law. If the personal protection insurer fails to pay any of such benefits due under this act with respect to the injury, the person, organization, insurer or governmental agency shall have a lien, with respect to any payment it may be obligated to make, upon the obligation of the personal protection insurer, by giving prior written notice of its intention to make payment for such injury.”

       Senate Journal 1972, Vol 2, p 1275.

       The substitute bill was passed in the Senate without amendment June 8, 1972 (Senate Journal, Vol 2, p 1390). On September 21, 1972, the House Committee on Insurance reported out a House Substitute (House Journal, Vol 3, p 2786) which passed the House but was rejected in the Senate (Senate Journal Vol 2, p 1944). A conference committee was appointed and, on October 5, 1972, the committee reported that the House receded from its substitute and agreed to the Senate Substitute in the form it was enacted by the Senate. (Senate Journal, Vol 2 p 2005.)

       The Hawkins panel distinguished Mathis on the grounds that in Mathis the employer was self-insured. I do not agree with the distinction and in this respect agree with the majority opinion in the instant case that the liabilities of self-insurers and insurers must be coextensive.

       Of course, if the majority is right that plaintiff cannot recover under § (3) against Travelers because of the worker’s exclusivity provision, then the majority is correct in the conclusion expressed in the majority opinion that, as to Hawkeye, § (4)(b) establishes liability.

       Had deceased been in the course of his employment and using his own car when injured, Hawkeye would be responsible and the exclusivity clause would,not have been a proper defense. See Pollock v Frankenmuth Mutual Ins Co, 79 Mich App 218; 261 NW2d 554 (1977). There, plaintiffs sued Frankenmuth Mutual for no-fault benefits for the death of their mother who was killed when a third-party vehicle collided with an automobile being operated by the mother and insured with Frankenmuth. In turn, Frankenmuth claimed that the mother’s death occurred while she was in the course of her employment with Tyrolean Hills and that workmen’s compensation benefits payable by the compensation carrier should be deducted from any no-fault recovery against Frankenmuth even though plaintiffs refused to file for workmen’s compensation benefits. (Deceased’s husband was part owner of Tyrolean Hills.) In its opinion, the Court ruled only on the constitutional issue raised, holding that compensation benefits, if paid, could not be deducted. Implicit, however, in the opinion was an assumption that no-fault benefits could be collected on a private insurance contract even though deceased was killed while employed and would be entitled to workmen’s compensation.