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

text:
    PEOPLE v ARENDA
    Docket Nos. 78-2155, 78-2156.
    Submitted April 9, 1980, at Lansing.
    Decided June 2, 1980.
    Leave to appeal applied for.
    Mike T. Arenda was convicted of first-degree criminal sexual conduct following a jury trial and, thereafter, on his plea of guilty, was convicted of being a habitual offender, Bay Circuit Court, John X. Theiler, J. Prior to trial, the prosecution moved for suppression of any reference to evidence of prior sexual conduct between the victim, defendant’s eight-year-old son, and third parties. Judge Theiler granted the prosecution’s motion. At trial, during both the examination and cross-examination of both the victim and a protective services worker, references were made to prior sexual encounters between the defendant and the victim. Defendant neither moved for the suppression of such references nor objected to the references when made. At the time of taking defendant’s plea of guilty to being a habitual offender, the trial court failed to inform the defendant of the nature of the offense to which he was offering his plea and failed to inform defendant of his right to a public trial. Defendant appeals. Held:

    1. The suppression of any evidence of the victim’s sexual conduct with third parties was proper, since neither of the exceptions contained in the admissibility of evidence provision of the criminal sexual conduct statute are applicable. The suppression of such evidence did not violate the defendant’s Sixth Amendment right to confrontation.
    2. Reversal of the conviction for first-degree criminal sexual conduct is mandated by reason of the references to the prior sexual acts between the defendant and the victim. Since a _defendant’s general denial of having engaged in the prohibited acts is not sufficient to trigger the application of the similar acts statute, and since the question of defendant’s intent, motive, scheme, plan or system or the absence of mistake or accident were not at issue, the admission of such evidence of prior similar acts was error. Since the case turned on the weighing of the credibility of defendant and the victim, this error cannot be considered to be harmless error.

      References for Points in Headnotes
    [1] 6 Am Jur 2d, Assault and Battery § 229.
    [2, 4] 29 Am Jur 2d, Evidence § 320 et seq.

    [3] 21 Am Jur 2d, Criminal Law §§ 489, 491.5.
    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.
    [4] 5 Am Jur 2d, Appeal and Error §§ 601, 602.

      3. The failure of the trial court to inform the defendant prior to accepting defendant’s plea of guilty to being a habitual offender of his right to a public trial was error and mandates reversal of defendant’s conviction for being a habitual offender.
    Reversed and remanded.
    N. J. Kaufman, J., dissents in part and concurs in part. While he concurs that suppression of evidence of the victim’s sexual conduct with third parties was proper and the reversal of the plea-based conviction for being a habitual offender is mandated, he would hold that the references to prior similar acts between the defendant and the victim do not mandate reversal of the conviction for first-degree criminal sexual conduct. He would affirm the conviction for first-degree criminal sexual conduct, reverse the habitual offender conviction and remand for resentencing.
    Opinion of the Court
    1. Criminal Law — Evidence — Criminal Sexual Conduct — Sexual Behavior with Third Persons — Constitutional Law — Right of Confrontation — Statutes.
    Evidence of a young male victim’s sexual encounters with persons other than the defendant is not admissible in a trial for criminal sexual conduct, since such evidence does not fall within either of the exceptions contained in the admissibility of evidence section of the criminal sexual conduct act; a defendant’s Sixth Amendment right to confrontation is not violated by the statutory prohibition against admission of evidence of sexual encounters with third parties by a victim of a criminal sexual assault (MCL 750.520j; MSA 28.788[10]).
    2. Criminal Law — Evidence — Similar Acts — Limited Purpose of Similar Acts Statute — Triggering of Similar Acts Statute — Statutes.
    Reversible error results from the admission in a jury trial for criminal sexual conduct of evidence of prior sexual acts between the defendant and the victim where the question of defendant’s motive, intent, plan, scheme or system or the absence of accident or mistake are not at issue; a mere general denial by defendant is insufficient to trigger the use of the similar acts statute (MCL 768.27; MSA 28.1050).
    3. Criminal Law — Habitual Offenders — Plea of Guilty — Informing of Nature of Offense — Informing of Right to Trial.
    Reversible error results where a trial court, prior to accepting a plea of guilty under the habitual offender act, fails to inform the defendant of his right to a public trial.
    Partial Concurrence and Partial Dissent by N. J. Kaufman, J.
    4. Criminal Law — Evidence — Similar Acts — Absence op Objection.

      Reversal is not mandated by references in a trial for criminal sexual conduct to prior sexual acts between the defendant and the victim where there was no motion to suppress such references, there was no objection to such references when made, and defense counsel actively pursued inquiry with respect to the other similar acts.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas E. Bock, Assistant Prosecuting Attorney, for the people.

      Lynn Chard, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   D. C. Riley, P.J.

On January 20, 1978, defendant was convicted by a jury of three counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), involving his son, a child of eight years. On that same date, defendant pled guilty to being a habitual offender, MCL 769.12; MSA 28.1084. He was sentenced to 22 to 40 years and now appeals as of right.

Defendant first contends that it was error for the lower court to bar any questioning regarding the victim’s possible sexual contacts with third parties.

MCL 750.520j; MSA 28.788(10) provides:

"Sec. 520j. (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(a) Evidence of the victim’s past sexual conduct with the actor.
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.”

This statute establishes a general evidentiary rule of exclusion, subject to the limited exceptions set forth in subsections (l)(a) and (l)(b). Since information about the child’s alleged outside sexual encounters does not fall within either exception, the trial court properly applied the statute’s exclusionary provision. We do not believe that the court’s ruling violated defendant’s Sixth Amendment right to confrontation. See People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977).

Defendant also maintains that it was error to admit evidence of alleged similar acts between himself and the complainant without allowing him to rebut it. We agree. Similar acts may only be admitted under certain limited circumstances, such as to prove intent, plan, scheme, system, etc. Before the prior acts can be admitted, it must be shown that one or more of the statutory purposes is material or at issue. A mere general denial by the defendant is insufficient to trigger this analysis. People v Major, 407 Mich 394, 398-400; 285 NW2d 660 (1979).

In the instant case, defendant generally denied participating in the alleged acts of fellatio, claiming that he was not with his son when the acts occurred. However, he made no further averments, such as mistake or accident, which would have brought such issues as motive, intent or identity into issue. We believe, therefore, that the lower court erred in allowing the similar acts testimony into evidence. Since this case turned on a weighing of credibility between the defendant and the complainant, the error cannot be considered harmless but must be deemed grounds for reversal and a new trial.

Reversal is also mandated due to the lower court’s faulty acceptance of defendant’s habitual offender guilty plea. In People v Stevens, 88 Mich App 421, 427; 276 NW2d 910 (1979), this Court held that trial courts must comply with the rigorous procedural requirements of GCR 1963, 785.7, in taking habitual offender pleas, just as they would in accepting any other guilty pleas. However, this holding was only to have prospective application. Stevens, supra, 428. The prior standard for acceptance of habitual offender pleas required judges to inform defendants of the charge levied against them and of their right to public trial. People v Parker, 50 Mich App 537, 540-541; 213 NW2d 576 (1973). Even this modest standard was not complied with in the instant case, since the trial court never expressly informed defendant that he had a right to trial on the habitual offender charge.

Defendant’s other claims are without merit and need not be addressed.

Reversed and remanded for proceedings consistent with this opinion.

R. B. Burns, J., concurred.

N. J. Kaufman, J.

(dissenting in part, concurring in part). I must lodge a partial dissent to the position taken by my colleagues. I do not agree that impropriety arose from the admission of similar acts evidence on the facts of this case.

There were only two instances wherein testimonial references were made to uncharged similar acts defendant might have engaged in with the complainant. On direct examination, the complainant first indicated that the defendant might have taken liberties with him on prior occasions, but, he wasn’t sure. Then, the complainant answered affirmatively when asked if prior incidents had occurred. On cross-examination, complainant recanted, indicating he did not know if he had ever done anything with the defendant before. The complainant was a confused, nervous and possibly frightened nine-year-old boy. Testimonial inconsistencies can be understood and anticipated in such situations. I do not feel that this testimony can be said to have improperly introduced similar acts into evidence.

The second testimonial reference came with the examination of the protective services worker. She testified, on direct examination, that the complainant had told her of various dates upon which similar acts occurred. On cross-examination, defense counsel interrogated the witness further in this particular area. I believe that this inquiry was part of a defense strategy to discredit the complainant by exhibiting the inconsistencies and contradictions in the complainant’s testimony. Another stratagem might have been to highlight the physical impossibility of the task attributed to the defendant by emphasizing the frequency with which these incidents allegedly occurred.

In either event, I do not feel that this cause should be reversed due to the improper admission of similar acts evidence. The complainant’s testimony did not generate such an error, and the protective services worker’s testimony merely consisted of matters the complainant had related to her outside the courtroom.

Another factor worthy of note which supports the idea that defense counsel utilized the protective services worker’s testimony as part of a defense strategy is that defense counsel never objected to the introduction of similar acts evidence. No motions were made to suppress such evidence under the similar acts statute and the trial court was never called upon to rule in this area. The only motion made that might possibly encompass this subject matter was a prosecutorial motion to exclude evidence of the complainant’s prior sexual activities with third persons brought under the restrictive evidence provision of the criminal sexual conduct statute. The trial court granted this motion, and defendant premises one of his allegations of error thereupon. At trial, however, defense counsel questioned the complainant in defiance of the court’s admonition and received an answer. Thus, evidentiary exclusion under the restrictive evidence provision did not work to defendant’s prejudice.

I disagree with the majority only on the similar acts issue. I join in their treatment of defendant’s remaining allegation. Accordingly, I would affirm defendant’s criminal sexual conduct conviction, reverse his habitual offender guilty plea, and remand this cause for resentencing upon the former conviction.

       The statute in effect at the time of defendant’s trial provided:
      "Sec. 27. In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” MCL 768.27; MSA 28.1050.
      This statute was superseded by the following rule, which became effective after defendant’s trial.
      "Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged.” MRE 404(b).

       There is also an exception to the general rule barring similar acts testimony in sexual cases, which allows a complainant to testify regarding other sexual acts committed against him or her by the accused. See People v DerMartzex, 390 Mich 410, 413-415; 213 NW2d 97 (1973). This would normally allow the infant complainant to testify as to prior acts.
      In the instant case, charges were filed against the defendant for alleged prior similar acts, but these were dismissed at the preliminary examination. The child was unable to testify clearly at trial if or when the prior offenses took place. Under these circumstances, the prejudicial impact of the child’s and other witnesses’ testimony on possible similar offenses far outweighed any probative value. Der-Martzex, supra, 415. We must conclude, therefore, that it was reversible error for the judge to permit any testimony on prior similar acts.

       Even though I do not feel the testimony herein brought the similar acts issue to the fore, if it had, I would favor admission. Such has been the state of the law for over 100 years. As Mr. Justice Christiancy stated in People v Jenness, 5 Mich 305, 323-324 (1858), an appeal from a conviction of incest:
      "[W]here a witness has testified to a fact or transaction which, standing alone and entirely unconnected with anything which led to or brought it about, would appear in any degree unnatural or improbable in itself, without reference to the facts preceding and inducing the principal transaction, and which, if proved, would render it more natural and probable; such previous facts are not only admissible and relevant, but they constitute a necessary part of such principal transactions — a link in the chain of testimony, without which it would be impossible for the jury properly to appreciate the testimony in reference to such principal transaction.” (Emphasis in original.)
      See also People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).


source: Caselaw Access Project

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

license: Public Domain

text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v McMILLAN
    Docket No. 78-2573.
    Submitted April 2, 1980, at Detroit.
    Decided June 2, 1980.
    Leave to appeal applied for.
    Tamara Ann McMillan, a minor, was a passenger in a vehicle owned hy her grandfather, with whom she lived, and driven by her boyfriend when it was struck by an unknown vehicle, injuring her. Her mother individually and as her parent and guardian demanded arbitration under insurance policies issued by the Detroit Automobile Inter-Insurance Exchange (DAIIE). One policy was issued to her mother and the other to her grandfather. The arbitration panel held that the policies could be stacked despite an "other insurance” clause and other exclusion clauses purporting to deny coverage. DAIIE moved the Wayne Circuit Court to correct or modify or to vacate the award. The court, George Martin, J., denied the motion and affirmed the award. DAIIE appeals. Held:

    Review of judgments confirming or denying arbitration awards is limited in scope to the grounds provided in the court rules. A judgment confirming an arbitration award may be reversed where the arbitrators exceeded their powers by making a clear error of law. A clear error of law exists where the arbitrators have exhibited a manifest disregard of the law as distinguished from a mere error in the interpretation of the law. On the issues raised on appeal, the state of the law was unsettled and it cannot be said that the arbitration panel made a clear error of law.
    Affirmed.
    1. Arbitration — Judgments — Judicial Review — Court Rules.
    Review of judgments confirming or denying arbitration awards is limited in scope to the grounds provided in the court rules (GCR 1963, 769.9).
    References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 156.
    5 Am Jur 2d, Arbitration and Award § 145.
    [2] 5 Am Jur 2d, Arbitration and Award § 167.
    [3] 7 Am Jur 2d (Rev), Automobile Insurance §§ 347, 368.

      2. Arbitration — Judgments — Judicial Review — Clear Error of Law.
    A judgment confirming an arbitration award may be reversed where the arbitrators exceeded their powers by making a clear error of law; a clear error of law exists where the arbitrators have exhibited a manifest disregard of the law as distinguished from a mere error in the interpretation of the law.
    3. Arbitration — Insurance — No-Fault Insurance —• Stacking — Other Insurance Limitations.
    An arbitration panel’s decision not to give literal effect to an "other insurance clause” in each of the no-fault policies issued by a single insurer and to allow stacking of the coverages at a time when different panels of the Court of Appeals had reached opposite conclusions on the issue did not exceed its power or evidence a manifest disregard of the law.

      Selby, Dickinson, Pike, Mourad & Brandt (by Charles A. Pfeifer), for the plaintiff.

      William L. Fisher, for defendant.
    Before: J. H. Gillis, P.J., and Allen and Beasley, JJ.
   J. H. Gillis, P.J.

Plaintiff appeals, as of right, the denial of its motion to correct, modify or vacate an arbitration award of $40,000 in favor of the defendant.

This is an automobile no-fault insurance action. The following recitation of facts is taken from the statement of facts certified by order of the lower court dated September 1, 1978.

On January 10, 1976, Tamara Ann McMillan, a minor at the time, was a passenger in a vehicle owned by her grandfather, Clarence Perkins, which was being driven with permission by her boyfriend, Steven P. Geister. At the intersection of Woodward and Buckingham in Royal Oak, this vehicle was struck on the right side by an unknown vehicle which fled the scene without stopping. After impact, Mr. Geister lost control of the vehicle which spun around, striking a sign and a lamp post in the median.

Miss McMillan suffered serious injuries, including a compound fracture of the right leg which healed at a slight angulation with shortening. There was also a permanent soft tissue deficit in the right leg where the fracture occurred and a permanent hematoma in her left leg.

On August 2, 1977, a demand for arbitration was filed with the American Arbitration Association. This demand was made under the Detroit Automobile Inter-Insurance Exchange policy issued to Miss McMillan’s mother, Patricia McMillan. It was not until December 19, 1977, that demand for arbitration was made under the policy issued by the Detroit Automobile Inter-Insurance Exchange to Clarence Perkins.

Miss McMillan, her mother and her grandfather all resided at 1628 N. Pleasant, Royal Oak, at the time of this accident.

On January 19, 1978, the arbitration panel heard this matter with all parties present with their attorneys. Besides the issues of liability and damages there also existed the question of whether "stacking” of the policies of Mrs. McMillan and Mr. Perkins was to be permitted. Certain oral arguments were made by both sides. At the conclusion of the hearing the panel requested that the two attorneys submit briefs on this issue as well as stipulate to the contents of the insurance policy.

On or about January 31, 1978, a stipulation was filed with the American Arbitration Association attached to which was the policy issued to Mrs. McMillan and to Mr. Perkins by the Detroit Automobile Inter-Insurance Exchange.

All briefs were filed by March 7, 1978, as requested by the panel.

On April 21, 1978, the award, as determined by a two-to-one majority of the panel, was distributed. That award was $5,000 to Patricia McMillan, individually, and $35,000 to Patricia McMillan as parent and natural guardian of Tamara McMillan, a minor.

Plaintiff then filed a motion to correct or modify the arbitration award or, in the alternative, to vacate the award on May 10, 1978. This motion was heard June 2, 1978, before Wayne County Circuit Judge George Martin. On June 13, 1978, Judge Martin denied the motion and entered an order affirming the award. It is this final disposition that plaintiff-appellant now appeals to the Court of Appeals.

Subsequent to plaintiff’s filing of its claim of appeal, the defendant twice filed pleadings designated as motions to dismiss. The grounds upon which the motions were based were not those stated in GCR 1963, 817.5(2). The relief sought was peremptory affirmance of the lower court order confirming the arbitration award. Accordingly, the motions were treated as motions to affirm. GCR 1963, 817.5(3). The motions were denied by this Court without comment in orders dated November 30, 1978, and August 8, 1979.

This Court’s review of judgments confirming or denying arbitration awards is extremely limited in scope. North American Steel Corp v Siderius, Inc, 75 Mich App 391, 399-400; 254 NW2d 899 (1977), 6 CJS, Arbitration, § 125, p 372, 5 Am Jur 2d, Arbitration & Award, § 167, pp 643-644. GCR 1963, 769.9(1) provides the specific and sole grounds for vacating an arbitration award. One of those stated grounds is the situation wherein the arbitrators exceed their powers. GCR 1963, 769.9(l)(c).

Arbitrators exceed their powers when they make a clear error of law. Detroit Automobile Inter-Ins Exchange v Spafford, 76 Mich App 85, 87; 255 NW2d 780 (1977), Howe v Patron's Mutual Fire Ins Co of Michigan, 216 Mich 560, 569-570; 185 NW 864 (1921). A "clear error of law” exists where the arbitrators have exhibited a manifest disregard of the law as distinguished from a mere error in the interpretation of the law. Detroit Automobile Inter-Ins Exchange v Ayvazian, 62 Mich App 94, 98, fn 1; 233 NW2d 200 (1975), Lotoszinski v State Farm Mutual Automobile Ins Co, 94 Mich App 164; 288 NW2d 369 (1979), Detroit Automobile Inter-Ins Exchange v Standfest, 96 Mich App 71; 292 NW2d 164 (1980). See Domke, Commercial Arbitration, p 313. The question becomes whether the arbitrators made such a clear error of law in permitting the defendant to "stack” the insurance policies involved and to recover on both. An examination of the certified statement of facts shows that Tamara McMillan suffered injuries as a guest passenger in the automobile owned by her grandfather, Clarence Perkins. Perkins had uninsured motorist liability coverage with the plaintiff. Tamara’s mother had a similar but independent policy of insurance issued to her by the plaintiff upon her own vehicle that gave her the same protection for injuries caused by an uninsured motorist.

The plaintiff paid $20,000 to the injured guest passenger under the grandfather’s policy. Plaintiff refused to pay under the mother’s policy due to restrictive clauses in the policy.

The plaintiff first contends that the arbitration panel exceeded its powers in permitting "stacking” in that the insurance policies involved contained "other insurance” clauses.

Uninsured motorist protection is no longer required in Michigan as MCL 500.3010; MSA 24.13010 (which mandated uninsured motorist coverage), was repealed by 1972 PA 345, effective January 9, 1973. Nevertheless, such coverage is frequently purchased by automobile owners in their desire to have full insurance coverage. Commonly, as in this case, uninsured motorist provisions contain an "other insurance” clause. The "other insurance” clauses in the automobile insurance policies here involved provide:

"With respect to bodily injury to an insured sustained while occupying an automobile or through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Exchange shall not be liable under this coverage for a greater proportion of the applicable limit of liability of this coverage than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.
"Subject to the foregoing paragraph, if the insured has other similar insurance available to him against a loss covered by this coverage, the Exchange shall not be liable under this coverage for a greater proportion of such loss than the applicable limit of liability hereunto bears to the total applicable limits of liability of all valid and collectible insurance against such loss.”

It must be determined whether such a clause precludes the defendant from recovering on behalf of her daughter under the policy issued by the plaintiff.

"Stacking” refers to the ability of the insured, when covered by more than one policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate. Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464, 473; 201 NW2d 786 (1972).

The instant case involves a single insurer which issued multiple insurance policies. With respect to such a factual setting, different panels of this Court had, at the time of the arbitration award in the instant case, reached opposite conclusions as to the permissibility of "stacking”. Compare Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777; 262 NW2d 904 (1977), wherein stacking was precluded, with Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439; 264 NW2d 19 (1978), lv gtd 402 Mich 950s (1978), wherein stacking was permitted.

Due to the unsettled nature of the Michigan law at the time of the arbitration award, we hold that the arbitrators’ decision to permit stacking does not evidence a manifest disregard of the law. Detroit Automobile Inter-Ins Exchange v Ayvazian, supra. The arbitrators cannot be said to have exceeded their powers in failing to give the other insurance clause its literal effect. See Lotoszinski v State Farm Mutual Automobile Ins Co, supra, Detroit Automobile Inter-Ins Exchange v Standfest, supra.

The plaintiff next contends that the arbitration panel exceeded its power in failing to apply the "exclusion” clause in the defendant’s insurance policy so as to preclude recovery under that policy.

The "exclusion” clause in defendant’s policy reads in pertinent part:

"The insurance afforded by this [uninsured motorist] coverage does not apply: (1) to bodily injury to an insured sustained while occupying any automobile, other than an owned automobile, except a non-owned automobile to which there is applicable and available to such an insured no insurance similar to that afforded by this coverage.”

The "exclusion” clause, thus, excludes uninsured motorist coverage unless the injured party was occupying a nonowned, uninsured automobile.

A nonowned automobile is defined in the defendant’s policy as:

" '[N]on-owned automobile’ means any automobile * * * not owned by * * * [a] relative or other resident of the same household of such named insured.”

It is undisputed that the automobile which Tamara McMillan was occupying at the time of the accident was owned by her grandfather and that Tamara and her mother resided with her grandfather. Thus, pursuant to the contractual definition, the grandfather’s car was not a nonowned automobile for the reason that it was owned by a relative of the same household as the named insured. Under these facts, the "exclusion” clause does apply and the defendant is excluded from uninsured motorist benefits under the terms of her mother’s insurance contract. See Detroit Automo bile Inter-Ins Exchange v Reynolds, 81 Mich App 710; 265 NW2d 799 (1978).

The question becomes whether the arbitrator’s failure to properly apply the "exclusion” clause to preclude recovery under the mother’s policy constitutes a clear error of law so as to support vacation or modification of the award. The answer is that it does not. At the time of the award, this Court had addressed and decided the precise issue in but one case. Detroit Automobile Inter-Ins Exchange v Reynolds, supra. However, at the same time, there existed in this Court a split of authority as to the validity of such an exclusion clause prior to the repeal of statutorily required uninsured motorist coverage. See footnote 2, supra. Compare Rice v Detroit Automobile Inter-Ins Exchange, 66 Mich App 600; 239 NW2d 675 (1976), Priestly v Secretary of State, 67 Mich App 96; 240 NW2d 282 (1976), and Nunley v Turner, 57 Mich App 473; 226 NW2d 528 (1975), with Hickman v Community Service Ins Co, 78 Mich App 1; 259 NW2d 367 (1977), Bradley v Mid-Century Ins Co, 78 Mich App 67; 259 NW2d 378 (1977), and Ellis v State Farm Ins Co, 78 Mich App 189; 259 NW2d 421 (1977). Though these cases are distinguishable from Reynolds and the present case, they are so close as to have rendered the state of the relevant law somewhat unsettled at the time of the arbitration award. Accordingly, we hold that the arbitrator’s failure to apply the "exclusionary” clause constitutes a mere error in the interpretation of the law. Detroit Automobile Inter-Ins Exchange v Ayvazian, supra. The arbitrators cannot be said to have exceeded their powers in failing to give the "exclusion” clause its proper effect.

Lastly, we note that defendant again attempts to raise those issues which were found to be without merit in the Court of Appeals’ orders disposing of defendant’s motions to "dismiss”. We shall not consider defendant’s contentions in these respects since defendant has not filed a cross-appeal with this Court, as required by GCR 1963, 807.1. See Sabbe v Wayne County, 322 Mich 501, 505; 33 NW2d 921 (1948), Therrian v General Laboratories, Inc, 372 Mich 487, 490; 127 NW2d 319 (1964), Huey v Campbell, Wyant & Cannon Foundry Co, 55 Mich App 227, 233; 222 NW2d 191 (1974), aff'd in part 395 Mich 169; 235 NW2d 545 (1975).

Affirmed.

       See Detroit Automobile Inter-Ins Exchange v Reck, 90 Mich App 286; 282 NW2d 292 (1979), Lotoszinski v State Farm Mutual Automobile Ins Co, 94 Mich App 164; 288 NW2d 369 (1979).

       See MCL 500.3101 et seq.; MSA 24.13101 et seq.

       Were we to examine this case de novo we would likely affirm the arbitrators’ ruling that the "other insurance” clause would not preclude stacking. See Detroit Automobile Inter-Ins Exchange v Curl, 82 Mich App 140, 142; 266 NW2d 479 (1978), citing the dissenting opinion in Kozak v Detroit Automobile Inter-Ins Exchange, 79 Mich App 777; 262 NW2d 904 (1977).


author: Cynar, J. R. M. Maher, P.J.

text:
    HART v CITY OF DETROIT
    Docket No. 78-3489.
    Submitted January 8, 1980, at Detroit.
    Decided June 2, 1980.
    Leave to appeal applied for.
    Sylvia Hart and several others brought an inverse condemnation class action against the City of Detroit, claiming that the city had taken their property as part of an urban renewal project without paying any compensation therefor. All of the subject properties were acquired either directly or indirectly as a result of nonpayment of taxes. The Wayne Circuit Court, Benjamin D. Burdick, J., determined that the claims of the owners of all but seven of the properties were barred by the three-year statute of limitations pertaining to damages for injuries to persons or property, setting the date on which each former owner’s right of equity of redemption expired as the date on which the statute began to run, and granted the city’s motion for accelerated judgment as to those plaintiffs, who now appeal. The issues on appeal are whether the trial court applied the proper statute of limitations and whether that statute of limitations was properly applied to the facts. Held:

    1. The three-year statute of limitations was the proper limitation period to apply in this case wherein the plaintiffs had no ownership rights for three years prior to the filing of suit.
    2. The trial court correctly determined that the plaintiffs’ claims accrued on the dates on which each of their rights of equity of redemption expired because that was the last day on which the plaintiffs held any interest in their realty and the first day where a fixed value could reliably be determined.
    Afiirmed.
    R. M. Maher, P.J., dissented. He would hold that, because the taking of private property for public purposes without payment of compensation is analogous to the dispossession of a rightful owner by adverse possession, the 15-year statute which applies to adverse possession is the proper limitation period to apply to an inverse condemnation action. He would reverse.

      References for Points in Headnotes
    [1] 27 Am Jur 2d, Eminent Domain § 478 et seq.

    [2] 27 Am Jur 2d, Eminent Domain § 500.
    [3-6] 27 Am Jur 2d, Eminent Domain §§ 498-500.

      Opinion of the Court
    1. Property — Real Property — Limitation of Actions — Personal Actions — Inverse Condemnation — Statutes.
    Real property rights are not rights to which one is entitled by reason of being a person in the eyes of the law, rather, they accrue by virtue of an interest in real property; therefore, the 6-year statute of limitations for "all other personal actions” does not apply to an inverse condemnation action (MCL 600.5813; MSA 27A.5813).
    2. Property — Real Property — Limitation of Actions — Inverse Condemnation — Adverse Possession — Statutes.
    The 15-year limitation period for actions involving adverse possession should not be applied in an inverse condemnation action where the plaintiffs have not retained any ownership rights in the property involved because the defendant, a municipal corporation, has obtained all of the property in question by means of tax deeds or indirectly from the state (MCL 600.5801[4]; MSA 27A.5801[4]).
    3. Property — Real Property — Taking — Inverse Condemnation — Statutes.
    A "taking” of real property includes injury to and diminution in the value of real property; therefore, the statute of limitations covering actions involving injury to property is the correct limitation period to apply in a case of inverse condemnation in which a municipal corporation acquired property for an urban renewal project via tax deeds and purchases from the state (MCL 600.5805[7]; MSA 27A.5805[7]).
    4. Property — Real Property — Taking — Accrual of Claim — Limitation of Actions.
    A cause of action arising from a taking of real property does not accrue, nor does the statute of limitations on such action begin to run, until the consequences of the governmental action have so manifested themselves that a final account may be struck; the period of limitation began to run, in a case of inverse condemnation in which a city acquired property by tax deeds and purchases from the state, on the date on which the owners’ rights of equity of redemption expired because that was the first date on which a fixed value could reliably be determined.

      Dissent by R. M. Maher, P.J.
    5. Limitation op Actions — Purpose.

      Statutes of limitation are generally considered to be procedural rather than substantive, and their purpose is to guard against stale claims.

    6. Property — Real Property — Limitation op Actions — Inverse Condemnation — Adverse Possession — Statutes.

      The 3-year statute of limitations, when applied to an "injury to property”, is generally applied to the loss of personal property or the interference in the use or value of real property; a case in which a governmental body has taken the property for a public use without paying any compensation is more analogous to a dispossession by adverse possession and should be governed by the 15-year limitation period on actions for adverse possession (MCL 600.5805, 600.5801[4]; MSA 27A.5805, 27A.5801[4]).

      Mason, Steinhardt, Kellman & King, for plaintiffs.

      Monaghan, Campbell, LoPrete, McDonald & Norris (by Boris K. Yakima, Special Assistant Corporation Counsel), for defendant.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Cynar, J.

This appeal involves an inverse condemnation class action suit. The original complaint in this action was filed May 9, 1974. The class was certified pursuant to GCR 1963, 208, on April 7, 1977. After all eligible classs members were notified, owners of 42 parcels of land joined the class. Defendant moved for accelerated judgment, and on August 18, 1978, the trial court granted the same, on the ground that the claims of all but seven of the plaintiffs were barred by the statute of limitations pertaining to damages for injuries to person or property. Those seven plaintiffs are not parties to this appeal, which is taken as of right.

I. Facts

This appeal is submitted on a stipulated statement of facts. The statement indicates that the parcels of realty in question are located within the boundaries of defendant’s Elmwood Park Urban Rehabilitation Project No. 3 (Elmwood 3). A part of Elmwood Park, the affected area contains approximately 1,400 separate parcels of land. Elm-wood 3 was originally conceived by city planners in the mid-to-late 1950’s. As part of its urban renewal efforts, defendant City of Detroit has acquired and demolished the structures upon virtually every parcel within Elmwood Park in order to facilitate redevelopment.

All parties have stipulated that the actions of defendant in the Elmwood 3 project resulted in a de facto taking of plaintiffs’ property without just compensation therefor. However, in each instance the subject properties were either directly or indirectly acquired by defendant as a result of nonpayment of taxes. This occurred after the de facto takings but well prior to the commencement of any formal condemnation proceedings by defendant. The plaintiffs now appealing were not joined as parties to any of 12 formal condemnation proceedings filed by defendant from August 3, 1971, to November 27, 1972.

On May 9, 1974, the within action was instituted, well after all the parcels involved in this controversy were conveyed for nonpayment of taxes, and more than three years after the right of equity of redemption had expired with respect to every parcel.

Because this right had expired with respect to the parcels formerly owned by the plaintiffs on appeal, the lower court concluded that each plaintiff’s cause of action accrued, at the latest, on the date of expiration of their right to redeem. Applying (as noted hereinbefore) the three-year statute of limitations found in MCL 600.5805(7); MSA 27A.5805(7), the trial court held that the claims of the plaintiffs now appealing were barred thereby because their claims accrued, at the latest, more than three years prior to the institution of the class action suit, and were thus without the statute of limitations.

II. The Appropriate Statute of Limitations

The first question for consideration is whether the three-year statute of limitations found in MCL 600.5805(7); MSA 27A.5805(7) is applicable to inverse condemnation actions.

Plaintiffs argue that no statute of limitations should apply, as none can bar inverse condemnation actions. According to plaintiffs, due process rights guaranteed by both the Federal and State Constitutions are being invoked, and no statute of limitations can cut off those rights.

Defendant contends that the three-year limitations statute was properly applied by the trial court. As defendant views it, a "taking” has been held to include serious injury or damage to private property, thus a taking of real property should fall under the ambit of a statute of limitations provision barring actions pertaining to injury to property.

We initially reject plaintiffs’ claim that, since due process rights are involved in the instant litigation, no statute of limitations can be imposed to vitiate those rights. In a different context, but one nonetheless concerned with a deprivation of due process rights, this Court concluded that somp statute of limitations must apply. Citizens for Pre-Trial Justice v Goldfarb, 88 Mich App 519, 529-531; 278 NW2d 653 (1979). With this conclusion we agree.

We are likewise unable to accept plaintiffs’ argument that MCL 600.5813; MSA 27A.5813, which establishes a six-year statute of limitations for "all other personal actions”, is applicable to inverse condemnation proceedings. We do not find personal claims to include claims predicated upon real property rights. Cf., Stringer v Board of Trustees of Edward W Sparrow Hospital, 62 Mich App 696, 700-701; 233 NW2d 698 (1975), lv den 395 Mich 768 (1975). These are not "rights to which one is entitled by reason of being a person in the eyes of the law”. Id. They instead accrue by virtue of an interest in real property.

We are further unpersuaded by plaintiffs’ assertion that the adverse possession period in this state is the proper limitation of actions provision to employ in this case. In support of this position, plaintiffs cite Brazos River Authority v City of Graham, 163 Tex 167; 354 SW2d 99 (1961), and Frustuck v City of Fairfax, 212 Cal App 2d 345; 28 Cal Rptr 357 (1963). We perceive insuperable obstacles to an even-handed application of such a provision in inverse condemnation actions.

First, with adverse possession the point at which the statute begins to run is clear-cut and easy to define: the open and hostile possession of land under claim of right to the exclusion of the true owner placed on notice of the claim. Wood v Denton, 53 Mich App 435, 440-441; 219 NW2d 798 (1974).

Contrarily, the point at which a "taking” commences is not as easily pinpointed since in most cases the true owner will not suffer a privation of seisin. Moreover, a distinction between when a "taking” occurs and when a plaintiff’s cause of action arises has evolved under both Michigan and Federal case law.

United States v Dickinson, 331 US 745; 67 S Ct 1382; 91 L Ed 1789 (1947), clearly illustrates the above point. In that case the Federal government, without condemning Dickinson’s land, dammed a river and raised the water level in stages until the land was flooded. More than six years after water began to flood Dickinson’s land, but less than six years after that water reached its ultimate level, Dickinson brought an inverse condemnation action. The applicable statute of limitations under the Tucker Act was six years.

The Court noted that, although perhaps the taking occurred at the time the water began to pour onto Dickinson’s land, it would be unfair to hold that his cause of action accrued prior to the water reaching a stabilized level. Only then could Dickinson know the extent of the damage.

If this concept of a "continuous wrong”, which is applied in inverse condemnation actions, is coupled with the 15-year adverse possession statute of limitations, there will be two untoward results: (1) the statute would not be applied in inverse condemnation actions in the manner it was intended under the theory of adverse possession, i.e., that it would run from the time of taking; and (2) the period of time in which a plaintiff could bring suit would be abnormally long.

Furthermore, although applying the adverse possession limitation period is at least arguably sensible in an inverse condemnation case where a plaintiff retains ownership of the affected property and is still the owner at the time suit is brought, it is questionable whether that statute should apply in a case such as this one where plaintiffs had no ownership rights (legal or equitable) for more than three years prior to the date the suit was filed. In such case, plaintiffs would retain the right to bring suit for a "taking” of the property for 15 years or more after that taking, no matter what third party was presently the true owner.

Accordingly, we decline to apply the adverse possession statute of limitations to this inverse condemnation action.

We now examine whether MCL 600.5805(7); MSA 27A.5805(7) is the proper statute of limitations to apply to the instant factual situation.

Const 1963, art 10, § 2 provides:

"Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law.”

The term "taking” has historically been interpreted in this jurisdiction to include not only instances of an absolute conversion of property but also cases involving a marked diminution in property value resulting from government action and cases where serious injury is inflicted upon the property itself. Buckeye Union Fire Ins Co v Michigan, 383 Mich 630, 641-642; 178 NW2d 476 (1970), inter alia. Since Michigan appellate courts have consistently interpreted the term "taking” to include injury to, and diminution in the value of, real property, we are persuaded that the statute of limitations covering injury to property was the appropriate one to apply to the "taking” conceded to have occurred here, and therefore we so hold.

III. Application of MCL 600.5805(7); MSA 27A.5805(7)

Having concluded that the trial court utilized the proper statute of limitations in ruling upon defendant’s motion for accelerated judgment, we now turn to the trial court’s application of the same to the facts of the case at bar. In analyzing this issue, the paramount question is when the claims of the plaintiffs accrued, thereby triggering the running of the statute as against those claims.

As touched upon in the discussion in II, supra, the notion of a "taking” does not necessarily fixate upon any precise moment in time or any single event, but can instead be fluid or continuous. It has thus been said that a cause of action arising from a taking does not accrue, nor does the statute of limitations begin to run, until the consequences of the governmental action "have so manifested themselves that a final account may be struck”. United States v Dickinson, supra, 749. Or to phrase it differently, the action accrues when the situation becomes "stabilized”. Silverstein v Detroit, 335 F Supp 1306, 1309 (ED Mich, 1971).

The lower court in the case sub judice concluded that plaintiffs’ causes of action accrued, at the latest, on the date that their rights of equity of redemption expired. In essence, the court held that the situation "stabilized” as to each plaintiff on that date.

We concur with the conclusion of the trial court on this point. The day the right of equity of redemption expired was the last date plaintiffs held any interest in the realty which is the subject of this controversy. It is the logical point at which to conclude that the situation "stabilized”, or that a final account could be struck; it is the first date where a fixed value could reliably be determined with respect to the plaintiff’s properties.

Since, as to all the plaintiffs on appeal, this date was more than three years prior to the commencement of this class action, we are compelled to hold that the action was not timely brought by them under MCL 600.5805(7); MSA 27A.5805(7), as then in effect. Therefore, as to those plaintiffs, the action was barred by the above-cited provision.

IV. Conclusion

In summary, we affirm the decision of the lower court with respect to the proper statute of limitations to employ and as to the correct application of that statute to the facts of this case.

Affirmed. No costs, a public question being involved.

M. F. Cavanagh, J., concurred.

R. M. Maher, P.J.

(dissenting). I must dissent from the majority’s opinion which finds the three-year statute of limitation in MCL 600.5805(7); MSA 27A.5805(7) applicable to this case.

Generally, statutes of limitations are considered to be procedural rather than substantive. Buscaino v Rhodes, 385 Mich 474, 480; 189 NW2d 202 (1971). Statutes of limitations are statutes of repose, i.e., their purpose is to guard against stale claims, where the loss of evidence or witnesses due to death or lapse of time may render the case impossible of proof. Bigelow v Walraven, 392 Mich 566, 570; 221 NW2d 328 (1974), Buscaino v Rhodes, supra.

MCL 600.5805; MSA 27A.5805 provides the limitations periods for various injuries to persons or property. Included in this statute are the personal torts of assault, battery, and false imprisonment; malicious prosecution; malpractice; misconduct of sheriffs; negligence of a constable; libel or slander; and all other injuries "to persons and property”. The limitation periods range from one to three years. The relatively short limitation period can readily be explained by the personal nature of these torts. Personal knowledge and recollection by witnesses is crucial to show an assault, battery, libel, etc., since usually their effect is not permanent.

The three-year limitation period, when applied to an "injury to property”, has usually been applied to the loss of personal property, for example, cows which were electrocuted by power lines, State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968); pigs that became ill and also began to eat each other, Nelson v Michigan Bean Co, 22 Mich App 540; 177 NW2d 655 (1970); defective floor tiles, Southgate Community School Dist v West Side Construction Co, 399 Mich 72; 247 NW2d 884 (1976). Other actions which were appropriately brought under MCL 600.5805(7) had to do with interference in the use or value of real property, e.g., railroad tracks which prevented egress or ingress from one direction, Green v Grand Trunk Western R Co, 287 Mich 29; 282 NW 890 (1938); erection of a viaduct in front of the plaintiffs property, Kipp v State Highway Comm’r, 286 Mich 202; 281 NW 592 (1938).

In the instant case, we are not dealing with the loss of personal property, nor are we dealing with the diminution in value or interference with use or enjoyment of real property. We have before us a group of persons whose claim is that the government’s actions resulted in the total loss of their real property, a "taking” without the payment of compensation, which is the essence of an inverse condemnation proceeding. Tamulion v State Waterways Comm, 50 Mich App 60, 66; 212 NW2d 828 (1973).

The law jealously guards against interference with the rights of ownership. The Michigan Constitution, 1963, art 10, § 2 requires the government to condemn property only after the proper procedures have been followed and "just compensation” has been paid to the owner. If the government has not followed the prescribed procedures, and has taken private property for a public use without paying any compensation whatsoever, it is more closely analogous to a situation where the rightful owner is dispossessed by adverse possession, which is governed by a 15-year statute under MCL 600.5801(4); MSA 27A.5801(4).

Indeed, the prescriptive period of adverse possession has been applied to inverse condemnation cases in other jurisdictions. In Brazos River Authority v City of Graham, 163 Tex 167; 354 SW2d 99 (1961), the Texas Supreme Court said, 163 Tex 167, 182-183; 354 SW2d 99, 109-110:

"We might add, however, that insofar as the sewage disposal plant is concerned, we have a taking by inverse condemnation and the great weight of American authority supports the position that, absent a particular statute covering the situation, the land limitation rather than the general limitation statutes apply to such inverse condemnation proceedings. Ackerman v Port of Seattle, 55 Wash 2d 400, 348 P2d 664 [77 ALR2d 1344]; Aylmore v City of Seattle, 100 Wash 515, 171 P 659 [LRA 1918E, 127]; Oklahoma City v Wells, 185 Okl 369, 91 P2d 1077 [123 ALR 662]; cases collected in Annot, 123 ALR 676; 18 Am Jur, Eminent Domain, § 394. The Texas rule is in accord. In case of a 'taking’ of property, the City’s right thereto would not be barred if ever until the expiration of the ten year period necessary to acquire lands by adverse possession under Art 5510, Vernon’s Ann Tex Stats. Tarrant County Water Control and Improvement Dist No 1 v Fowler, 175 SW2d 694, Texas Civ App, wr ref w.o.m., [142 Tex 375,] 179 SW2d 250. See also, Tarrant County Water Control and Improvement Dist No 1 v Reid, [Tex Civ App,] 203 SW2d 290, wr ref n.r.e.”

See also, Shepherd v City of Austin, 543 SW2d 185, 187 (Tex Civ App, 1976).

In Frustuck v City of Fairfax, 212 Cal App 2d 345, 374; 28 Cal Rptr 357, 375 (1963), the California Appellate Court decided that the three-year limitation period for injury to real property which was applicable to trespass cases should not apply to inverse condemnation proceedings, reasoning as follows:

"* * * We reason that acts constituting inverse condemnation amount to more than those of simple trespass. The former involve the taking or damaging of real property for a public use. When an act of trespass amounts to a taking or damaging for a public use it is more than a mere trespass on an interest in land, but it takes from the owner of the land something necessary and essential to the use and enjoyment of the property and thus results in the taking away of a valuable property right. To put the matter at rest, we are satisfied that section 338, subdivision 2, applies to acts of trespass or injury to property which do not involve the taking or damaging of private property for a public use pursuant to article 1, section 14 of the California Constitution.”

Use of the 15-year period in inverse condemnation proceedings involving loss of property would protect the interest of the landowner without working an injustice on the governmental body. This is because the nature of the proof differs from the usual trespass or tort injury. In an inverse condemnation situation, there is usually a well-documented change in the property itself over a prolonged period. In any case, since the plaintiffs bear the burden of proof in inverse condemnation proceedings, any loss of evidence or witnesses would be a greater detriment to them than to the governmental defendant.

I would reverse.

       The trial court relied upon MCL 600.5805(7); MSA 27A.5805(7) as in effect on the date accelerated judgment was granted. This period of limitations, three years, is now found in MCL 600.5805(8); MSA 27A.5805(8).

       Elmwood Park, an area on the lower east side of Detroit, not far removed from downtown, also includes Elmwood 1 and 2, Urban Renewal Areas as well, which abut Elmwood 3.

       The parcels were conveyed via tax deeds. Those acquired indirectly were purchased by defendant from the State of Michigan for a nominal consideration of $1 per parcel.

       The named plaintiff, Sylvia Hart, is not a party to this appeal, the lower court having ruled that her inverse condemnation suit was filed within the applicable limitations period. The other six plaintiffs who are not parties to this appeal were included in the formal condemnation proceedings instituted by defendant. The remaining class members are parties to this appeal.

       This subsection reads as follows:
      "(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”

       The relevant statute is MCL 600.5801(4); MSA 27A.5801(4), which has a period of limitations of 15 years.

      I note that the statute was amended in 1978, and the relevant portion, MCL 600.5805(8), provides:
      "(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.”

       MCL 600.5805(l)-(7); MSA 27A.5805(l)-(7).

        Muskegon v DeVries, 59 Mich App 415; 229 NW2d 479 (1975).


text:
    PEOPLE v STURDIVANT
    Docket No. 78-3968.
    Submitted April 9, 1980, at Lansing.
    Decided June 2, 1980.
    Richard L. Sturdivant was convicted, on his plea of guilty, of larceny in a building in Crawford Circuit Court, and sentenced to four years probation, including six months in jail, and given credit for 30 days served prior to sentencing. Subsequently, the defendant was found to have violated his probation and the Crawford Circuit Court, William A. Porter, J., sentenced the defendant to 32 to 48 months in prison, with credit for time served between his second arrest and the second sentencing. The defendant appeals alleging that he was improperly denied credit at his second sentencing for time served prior to his first sentence on the original charge. Held:

    1. A defendant is entitled to a grant of presentence credit for jail time previously served pursuant to the presentence credit statute only once rather than to any multiple grant of credit for the same time period.
    2. The probation statute envisions the imposition of full punishment following probation revocation regardless of any previous sentence, thus the portion of probation a defendant served in jail need not be credited against any term imposed for violation of probation.
    Affirmed.
    N. J. Kaufman, J., dissented and would grant the defendant credit for jail time served before and during his probation.
    Opinion of the Court
    1. Criminal Law — Courts — Sentencing — Presentence Credit.
    A defendant is entitled to presentence credit for jail time previously served, pursuant to the presentence credit statute, only once rather than to any multiple grant of credit for the same time period (MCL 769.11b; MSA 28.1083[2]).

      References for Points in Headnotes
    [1, 4] 21 Am Jur 2d, Criminal Law § 545.5.
    Right to credit for time spent in custody prior to trial or sentence. 77 ALR3d 182.
    [2] 21 Am Jur 2d, Criminal Law § 567.
    [3] 73 Am Jur 2d, Statutes §§ 278-280.

      2. Criminal Law — Statutes — Probation — Violation — Sentencing.
    The probation statute envisions the imposition of full punishment following probation revocation regardless of any previous sentence; the portion of probation a defendant served in jail need not be credited against any term imposed for violation of probation (MCL 771.4; MSA 28.1134).
    Dissent by N. J. Kaufman, J.
    3. Criminal Law — Statutes — Sentencing — Presentence Credit.

      The presentence credit statute is remedial in nature and deserves liberal construction to effectuate the legislative purpose (MCL 769.11[b]; MSA 28.1083[2]).

    4. Criminal Law — Probation — Violations — Presentence Credit.

      A defendant’s jail time, accumulated prior to a probation violation sentencing, should be credited against any sentence imposed for the probation violation.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas Kent, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people.

      Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   D. C. Riley, P.J.

On October 3, 1977, defendant was plea-convicted of larceny in a building, contrary to MCL 750.110; MSA 28.305. He was subsequently sentenced to four years of probation, including six months in the Crawford County jail and was given credit for 30 days served prior to sentencing. On May 31, 1978, he was arrested for violating his probation. Defendant’s probation was revoked at a hearing held on July 10, 1978, at which time he was sentenced to 32 to 48 months in prison, with credit for time served between his second arrest and sentence. Defendant now appeals as of right, claiming that he was improperly denied credit, at this second sentencing, for time served prior to and during his first sentence.

The Michigan statute, MCL 769.11b; MSA 28.1083(2), provides for presentence credit under certain limited circumstances:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bonds for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.”

Defendant first contends that this statute mandates credit against his second sentence for the 30-day period served prior to sentencing on the offense of larceny in a building. Although this period falls literally under the statute in that it was "prior to sentencing” (after the probation violation), we will not interpret the statute in this manner. Defendant has already received the 30-day credit against his original sentence. We believe that the statute only envisions a one-time issuance of credit rather than any multiple grant for the same period. Defendant’s contrary claim must therefore be rejected.

Defendant also asserts that he should receive credit for the six months served in jail pursuant to the initial sentence.

The probation statute provides that:

"In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” MCL 771.4; MSA 28.1134.

It is clear that the statute’s legislative intent is to allow the imposition of full punishment following probation revocation regardless of any previous sentence. People v Stange, 91 Mich App 596, 599; 283 NW2d 806 (1979). The portion of probation served in jail need not be credited against any term imposed for violation of probation. Stange, supra, 589-599, People v Lacy, 54 Mich App 471, 473-474; 221 NW2d 199 (1974), People v Jaynes, 23 Mich App 360, 361-362; 178 NW2d 558 (1970). Thus, defendant is not entitled to credit against his present sentence for jail time served under the original sentence.

Affirmed.

R. B. Burns, J., concurred.

N. J. Kaufman, J.

(dissenting). The opinion of my colleagues would deny defendant credit for the jail time he accumulated under a probationary order. Precedent exists for this approach as illustrated by People v Jaynes, 23 Mich App 360; 178 NW2d 558 (1970), People v Westman, 53 Mich App 662, 666; 220 NW2d 169 (1974), People v Lacy, 54 Mich App 471; 221 NW2d 199 (1974).

After many days of agonizing over this question, however, I find myself disagreeing with the majority’s decision as well as the rationale of the aforementioned cases.

The majority position is supported by the following statutory provisions which are based upon a 1927 Public Act. MCL 771.3; MSA 28.1133 provides:

"As a condition of probation, the court may require the probationer to be imprisoned in the county jail * * * for not more than 6 months.”

MCL 771.4; MSA 28.1134 states:

"It is the intent of the legislature that the granting of probation to the one convicted shall be a matter of grace. * * * In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.”

Although I recognize the mandate set forth in these statutes, I also note that precedent does exist for a more expansive approach to affording a criminal defendant credit for accumulated jail time. In People v Stange, 91 Mich App 596; 283 NW2d 806 (1979), the Court allowed a defendant credit for time he spent at a drug rehabilitation center prior to sentencing. The Stange Court cited MCL 769.11(b); MSA 28.1083(2) in support. It provides:

"Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall speciñcally grant credit against the sentence for such time served in jail prior to sentencing(Emphasis added.)

This statute, adopted by the Legislature long after the probation statute via a Public Act of 1963, represents a sounder, more equitable approach. Such a crediting statute is remedial in nature, and, as such, deserves liberal construction in order to effectuate the legislative purpose. Brinson v Genesee Circuit Judge, 403 Mich 676; 272 NW2d 513 (1978). It is my considered opinion that the Legislature intended the crediting statute to apply to the factual situation herein.

In the case at bar, defendant was given four years of probation, the first six months of which were to be served in the county jail. After this probationary jail term was served, defendant was arrested for violating the terms of his probation. A probation revocation hearing was held and, ultimately, defendant was sentenced to serve 32 to 48 months in prison, with no credit given for time served under the probationary order.

I find this result unacceptable. Strict application of the crediting statute mandates a different result. Defendant was found guilty of violating his probation. He was sentenced as if he never had been placed on probation, as required by MCL 771.4; MSA 28.1134, supra. The crediting statute, supra, provides that a person convicted of a crime who accumulates jail time prior to sentencing shall be given credit against the sentence for accumulated jail time. Defendant’s jail time was accumulated prior to his probation violation sentencing. Therefore, defendant should be given credit for the accumulated jail time. To hold contrary would require blindfolding ourselves to the realities of the situation. The original probationary order can be looked upon as a deferred sentence. Defendant was never truly "sentenced” then, yet he served approximately six months jail time prior to violating his probation. Ignoring this accumulated time runs afoul of the crediting statute, supra.

Moreover, defendant was given a 32 to 48 month sentence for violating his probation. Thus, the highest minimum sentence allowable was meted out. Indirectly tacking on an additional six months to this penalty by denying defendant credit for the jail time he accumulated under the probationary order would, in my opinion, constitute a type of double punishment.

       The Fifth Amendment guarantee against double jeopardy protects not only against a second trial for the same offense, but also "against multiple punishments for the same offense”. See North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969), and Whalen v United States, — US —; 100 S Ct 1432; 63 L Ed 2d 715 (1980).


author: D. F. Walsh, J.

text:
    THOMAS v FERNDALE LABORATORIES, INC
    Docket No. 78-4183.
    Submitted April 15, 1980, at Detroit.
    Decided June 2, 1980.
    Plaintiff, Deborah M. Thomas, was born on May 5, 1956. Her mother, during pregnancy, had been under the care of Dr. Joan Stryker and had taken the drug diethylstilbestrol (DES). In 1972, plaintiff’s mother became aware of the potential harm to the offspring of women who had taken DES. During that same year plaintiff began medical treatment for the identification of possible DES-related injuries. In 1973, plaintiff contacted Dr. Stryker for further medical treatment. The results of the Schillers test showed the presence of certain growths. After a colposcopy examination was performed, Dr. Stryker informed plaintiff of an adenosis condition which was caused by DES. On May 7, 1974, plaintiff filed a suit naming Eli Lilly and Company and Dr. Stryker as the defendants. On September 9, 1974, Dr. Stryker advised plaintiff that Ferndale Laboratories had manufactured and distributed the DES taken by plaintiff’s mother. Plaintiff’s suit against Eli Lilly and Company and Dr. Stryker was dismissed for no progress on February 10, 1975. Plaintiff filed a complaint against defendant, Ferndale Laboratories, based on negligence and breach of warranty on May 23, 1977. Defendant raised the affirmative defense of the expiration of the statute of limitations. In a deposition taken on January 3, 1978, plaintiff admitted that she was aware of her injuries and their DES causation in 1973. Ferndale Laboratories moved for accelerated judgment on the ground that the statutory limitation period had elapsed. The Wayne Circuit Court, Joseph A. Moynihan, Jr., J., denied the motion and ruled that the limitation period did not begin to run until September, 1974, when plaintiff became aware of the identity of the drug manufacturer. Defendant appeals by leave granted. Held:

    The running of the statute of limitations in a negligence action is not delayed until the discovery of the identity of the alleged tortfeasor when that knowledge is ascertained after the date that all of the elements of the cause of action have occurred.

      Reference for Points in Headnote
    [1] 51 Am Jur 2d, Limitation of Actions §§ 135-137, 146 et seq.

      Reversed.
    Negligence — Limitation of Actions.
    The running of the statute of limitations in a negligence action is not delayed until the discovery of the identity of the alleged tortfeasor when that knowledge is ascertained after the date that all of the elements of the cause of action have occurred.

      Hayim I. Gross, for plaintiff on appeal.

      Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. by Harry J. Sherbrook), for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant appeals an order denying a motion for accelerated judgment based on the expiration of the statute of limitations. GCR 1963, 116.1(5).

The facts of this case remain essentially undisputed. In the mid-1950s, plaintiffs mother consumed the drug diethylstilbestrol (hereafter DES) during pregnancy. Plaintiff, Deborah Thomas, was born on May 5, 1956.

In 1972, plaintiff’s mother became aware of the potential harm to the offspring of women who had taken DES. During that same year plaintiff began medical treatment for the identification of possible DES-related injuries. In 1973, plaintiff contacted Dr. Joan Stryker for further medical treatment. The results of the Schillers test showed the presence of certain growths. After a colposcopy examination was performed, Dr. Stryker informed plaintiff of an adenosis condition which was caused by DES. At this time plaintiff became aware of her cause of action.

On May 7, 1974, plaintiff filed a suit naming Eli Lilly and Company and Dr. Stryker as the defendants. On September 9, 1974, Dr. Stryker advised plaintiff that Ferndale Laboratories had manufactured and distributed the DES taken by plaintiff’s mother. Plaintiff’s suit against Eli Lilly and Company and Dr. Stryker was dismissed for no progress on February 10, 1975.

Plaintiff filed a complaint against Ferndale Laboratories based on negligence and breach of warranty on May 23, 1977. In its answer, defendant raised the affirmative defense of the expiration of the statute of limitations.

In a deposition taken on January 3, 1978, plaintiff admitted that she was aware of her injuries and their DES causation in 1973. Ferndale Laboratories moved for accelerated judgment on the ground that the statutory limitation period had elapsed. The circuit judge denied the motion and ruled that the limitation period did not begin to run until September, 1974, when plaintiff became aware of the identity of the drug manufacturer. Defendant’s motion for rehearing was denied.

The sole issue on appeal is: can the running of the statute of limitations be delayed until the plaintiff becomes aware of the identity of the alleged tortfeasor, when that knowledge is ascertained after the date that all of the elements of the cause of action have occurred? We answer in the negative and conclude that the trial court erred in denying the motion for accelerated judgment.

In Walerych v Isaac, 63 Mich App 478; 234 NW2d 573, lv den 395 Mich 776 (1975), plaintiff filed a medical malpractice action against a hospital and two "John Doe” physicians. After the statutory period had run, plaintiff filed a complaint against Dr. Isaac. On appeal, plaintiff relied on the date of discovery rule for malpractice actions enunciated in Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), and argued that the statute did not run until two years after she discovered or in the exercise of reasonable diligence should have discovered the identity of the physician liable for her injuries. This Court rejected that contention and stated as follows:

"Plaintiff in this case knew by at least December, 1971, that there might be a cause of action against certain physicians. Plaintiff’s action against defendant was instituted more than two years from that date. We are unwilling to hold that Dyke v Richard, supra, applies here. The issues of professional knowledge and reasonableness are not present. Discovery of the identity of an alleged tortfeasor is no more difficult when the wrong alleged is malpractice.” Walerych v Issac, supra, 481.

In Kroll v Vanden Berg, 336 Mich 306; 57 NW2d 897 (1953), the Supreme Court disagreed with plaintiff’s argument that the running of the statute should have been delayed until more detailed information about the injury could be obtained. The Court noted:

"In Weast v Duffie, 272 Mich 534, at page 539, we quote with approval from 37 CJ, p 976, as follows:
" 'It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.’ ” Kroll v Vanden Berg, supra, 311.

Likewise, in Sedlak v Ford Motor Co, 64 Mich App 61; 235 NW2d 63 (1975), this Court rejected the plaintiff’s contention that the limitation period did not commence to run until the discovery of a possible relationship between the injury and the allegedly negligent design of the defendant’s product. The Court identified the potential problems with the plaintiff’s assertion in the following manner:

"Absent certain exceptions as to disabilities, not here relevant, plaintiff had 3 years to find out or obtain adequate assistance in investigating the claimed relationship between the injury and the alleged negligent design.
"It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding.” Sedlak v Ford Motor Co, supra, 63.

See also, Stoneman v Collier, 94 Mich App 187; 288 NW2d 405 (1979).

Similarly, in the case at bar, the accrual date of plaintiff’s cause of action was not delayed until she became aware of the identity of the specific defendant-tortfeasor that might ultimately be liable for her injuries.

We conclude that the reasoning of the Walerych decision directly controls the disposition of the instant case. The order denying accelerated judgment is reversed. Cost to defendant.

       The parties have stipulated to this fact.


author: P. C. Elliott, J.

text:
    WATKINS v CITY CAB CORPORATION
    Docket No. 78-4436.
    Submitted December 12, 1979, at Detroit.
    Decided June 2, 1980.
    Charlene Watkins, hereinafter plaintiff, brought a negligence action against City Cab Corporation, hereinafter defendant, for injuries she received in an automobile accident. The Wayne Circuit Court, Roland L. Olzark, J., granted summary judgment to the defendant. Plaintiff appeals. Held:

    1. Summary judgment is almost never appropriate in negligence actions.
    2. The phrase "serious impairment of body function” presents a question of fact that is within the exclusive province of the triers of fact.
    3. A summary judgment for a defendant in a negligence action under the no-fault act is available only where a judge can decide after accepting as true all of the. plaintiff’s factual allegations that no reasonable jury would find the injury sustained to be serious.
    4. A partial summary judgment for a plaintiff in a negligence action under the no-fault act is available on the issue of serious impairment of body function only where a judge determines that an impairment of body function occurred and was serious and no reasonable jury could disagree.
    5. The Court of Appeals cannot say that all reasonable jurors would agree that there was no serious impairment of body function.
    Reversed and remanded with instructions.
    1. Judgments — Summary Judgments — Negligence.
    Summary judgment is almost never appropriate in negligence actions.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Summary Judgment § 6.
    Propriety of granting summary judgment in case involving issue of gross or wanton negligence. 50 ALR2d 1309.
    [2-4] 57 Am Jur 2d, Negligence § 9.
    73 Am Jur 2d, Summary Judgment §§ 26, 27.
    [3] 73 Am Jur 2d, Summary Judgment §§ 4, 6.
    [4] 73 Am Jur 2d, Summary Judgment § 41.

      2. Negligence — Fact Question — Question of Law.
    The phrase "serious impairment of body function” presents a question of fact that is within the exclusive province of the triers of fact; but summary judgment is not an absolute impossibility on a motion that a plaintiffs injury is or is not a serious impairment of body function as a matter of law.
    3. Judgments — Summary Judgments — Automobiles — Negligence — No-Fault.
    A summary judgment for a defendant in a negligence action under the no-fault act is available only where a judge can decide, after accepting as true all of the plaintiffs factual allegations, that no reasonable jury would find the injury sustained to be serious.
    4. Judgments — Summary Judgments — Automobiles — Negligence — No-Fault.
    A partial summary judgment for a plaintiff in a negligence action under the no-fault act is available on the issue of serious impairment of body function only where a judge determines that an impairment of body function occurred and was serious and no reasonable jury could disagree.

      Rifkin, Kinglsey & Rhodes, P.C. (by Frank K. Rhodes, III), for plaintiff.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Paul E. Pedersen), for defendant.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

This is the kind of fender-bender soft tissue injury, briefly incapacitating with a fast and full recovery, that the Legislature meant to keep out of court by enacting the threshold requirements. However, by using the uncertain phrase "serious impairment of body function”, the no-fault act utterly fails to accomplish that purpose and, ironically, makes auto-accident litigation even more of a crap game.

Any incapacity for a few days or weeks will seem "serious” to one jury while another will find against a plaintiff who has a more extensive impairment „with continuing problems. The personalities of the jurors, the parties and the lawyers may affect the outcome.

It is no easier to say a body impairment is or is not "serious” than to say conduct established by discovery is or is not "negligent”. But summary judgment is almost never appropriate in negligence actions; Simonetti v Rinshed-Mason Co, 41 Mich App 446; 200 NW2d 354 (1972). The applicable Michigan court rule, GCR 117.2(3), is simply not a workable mechanism for courts to locate and weed out personal injury cases that do not belong there.

We recognize, however, that summary judgment is not an absolute impossibility on a motion that plaintiffs injury is or is not a serious impairment of body function as a matter of law. In Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), the Supreme Court reiterated that the statutory phrase "serious impairment of body function” presents a question of fact that is within the exclusive province of the triers of fact: "Only when interpretation approaches or breaches permissible limits does it become a question of law for the court.”

McKendrick v Petrucci, 71 Mich App 200, 212; 247 NW2d 349 (1976), observed:

"Where resolution of a case requires the trier of fact to make 'qualitative inferences’, summary judgment will usually not be appropriate.”

Nevertheless in Vitale v Danylak, 74 Mich App 615; 254 NW2d 593 (1977), the Court of Appeals affirmed a summary judgment for a defendant. After discussing the Advisory Opinion, supra, which refers to "permissible limits”, the Court said:

"While the opinion did not specify where the 'permissible limits’ are drawn, this Court is of the opinion that if any class of cases could approach such limitation, the case at bar must be included in that class. The plaintiff’s sole injury arising from the accident was a stiff neck, which was treated with minimal medication and subsequently disappeared within a week.” (74 Mich App 615, 619.)

Vitale is the exception that proves the rule. Summary judgment for the defendant is available only in those rare, clearest of cases in which a judge can decide "after accepting as true all of the plaintiffs factual allegations, that no reasonable jury would find the injury sustained to be serious”.

Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978), is the other side of the Vitale coin. Cassidy holds that it is also legally possible for a judge to determine, in the clearest of cases in which no reasonable jury could disagree, that an impairment of body function occurred and was "serious” so that a partial summary judgment on that issue may properly be entered for the plaintiff. Actually it is not difficult to imagine cases in which a serious impairment of body function would be beyond question: an accident causing complete and permanent blindness would be an extreme example.

Although we strongly believe that plaintiffs incapacitation for a few weeks falls far short of the statutory threshold we cannot say that all reasonable jurors would agree.

We reverse and remand with a suggestion that the circuit judge remove the case to a lower court. In the unlikely event that a jury finds in favor of plaintiff, nine weeks of convalescence, with lost wages and medical paid as P.I.P. benefits, surely would not justify an award in excess of $10,000.


author:
D. F. Walsh, J.
      M. J. Kelly, P.J.

text:
    PEOPLE v WARE
    Docket No. 78-4692.
    Submitted March 5, 1980, at Lansing.
    Decided June 2, 1980.
    Ronald Ware was convicted of felonious assault, Recorder’s Court of Detroit, Verne C. Boewe, J. Defendant appeals, alleging that because the jury also found him not guilty of possession of a firearm in the commission of a felony the jury verdicts were inconsistent, that the prosecution should have had to prove that the gun used by defendant was operable at the time of the offense, that he was prejudiced by the prosecutor’s closing argument, and that the trial court erred by imposing a consecutive sentence. Held:

    1. The verdicts were consistent with the evidence and the trial court’s instructions on both felony-firearm and felonious assault. The verdicts are not reversibly inconsistent because they can be reasonably explained.
    2. A gun need not be proven operable at the time of the offense to support a conviction of felonious assault.
    3. The defendant was not prejudiced by the prosecutor’s closing argument.
    4. Because the defendant committed this offense while disposition of a prior felony charge against the defendant was pending, the trial court had the discretion to sentence the defendant consecutively.
    Affirmed.
    M. J. Kelly, P.J., concurred separately, pointing out that the rule regarding inconsistent verdicts has recently been criticized.
    1. Criminal Law — Juries — Verdicts — Inconsistent Verdicts.
    Jury verdicts will be held to be reversibly inconsistent only where they cannot be explained on any rational basis.
    References for Points in Headnotes
    [1] 76 Am Jur 2d, Trial § 1157.
    [2] 6 Am Jur 2d, Assault and Battery §§ 53, 54.
    79 Am Jur 2d, Weapons and Firearms § 16.
    [3] 21 Am Jur 2d, Criminal Law § 547.

      2. Criminal Law — Felonious Assault — Evidence — Operable Firearms.
    It is not necessary to prove that a gun used by a defendant was operable at the time of the offense in order to support a conviction of felonious assault.
    3. Criminal Law — Sentencing — Consecutive Sentences — Statutes.
    A defendant who commits a felony during the time when disposition of a prior felony charge is pending may be sentenced to a prison term on the second felony which is to be served consecutively to the term imposed for the prior felony (MCL 768.7b[a]; MSA 28.1030[2][a]).

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

      Jimmylee Gray, for defendant on appeal.
    Before: M. J. Kelly, P.J., and D, F. Walsh and Beasley, JJ.
   D. F. Walsh, J.

Defendant, Ronald Ware, was charged with assault with intent to rob, MCL 750.89; MSA 28.284, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was convicted by a jury of the lesser offense of felonious assault, MCL 750.82; MSA 28.277. The jury found him not guilty of felony-firearm. On August 22, 1978, defendant was sentenced to a prison term of 2-1/2 to 4 years. The court ordered the sentence to be served consecutively to a 1 to 2-1/2 year term being served on an unrelated charge.

Defendant’s first assignment of error concerns the alleged inconsistency of the jury’s verdicts. Jury verdicts will be held reversibly inconsistent only if they cannot be explained on any rational basis. People v Widgren, 53 Mich App 375, 384-385; 220 NW2d 130 (1974), lv den 396 Mich 849 (1976), People v Goodchild, 68 Mich App 226, 237; 242 NW2d 465 (1976), lv den 397 Mich 830 (1976). In determining whether verdicts are reversibly inconsistent, we must examine the jury instructions and the evidence. See People v Fields, 66 Mich App 347, 352; 239 NW2d 372 (1976), lv den 396 Mich 847 (1976).

In this case, the jury was instructed, in connection with the felony-firearm charge, that a firearm is defined as "any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion”. See MCL 8.3t; MSA 2.212(20). Based on the evidence presented at trial, the jury could have found that the gun carried by defendant had not been capable of propelling a dangerous projectile. There was evidence that defendant pulled the trigger but that the gun had not fired. The jury, therefore, could have determined that the weapon was not a "firearm” for felony-firearm purposes and could have based its determination of not guilty of felony-firearm on that finding. The verdict was fully consistent with the evidence and instructions.

Instructing the jury on the offense of felonious assault, the trial court did not include the statutory definition of "firearm” when explaining the element of use of a "dangerous weapon”. Based on the felonious assault instruction, the jury could have concluded that a weapon need not be operable to qualify as a "dangerous weapon” for felonious assault purposes.

Because the verdicts can be thus reasonably explained, they are not reversibly inconsistent. People v Goodchild, supra.

Defendant also argues that, to support a conviction of felonious assault, the prosecution must prove, when the "dangerous weapon” is a gun, that the gun was operable at the time of the offense. On the authority of People v Stevens, 92 Mich App 427; 285 NW2d 316 (1979), we reject defendant’s argument.

With respect to the prosecutor’s closing argument, defendant has failed to persuade this Court of the existence of prejudicial error. People v Jacoboni, 34 Mich App 84, 86; 190 NW2d 720 (1971), lv den 385 Mich 789 (1971).

Finally, defendant’s challenge to the consecutive nature of his sentence is without merit. MCL 768.7b(a); MSA 28.1030(2)(a). At sentencing, defense counsel recognized that the court had discretion to impose a consecutive sentence. Defendant does not deny that he committed the instant offense pending disposition of a prior felony charge. MCL 768.7b(a). We are not persuaded that the sentencing court abused its discretion in this regard.

Affirmed.

Beasley, J., concurred._

M. J. Kelly, P.J.

(concurring). I concur in Judge Walsh’s opinion and write only to add two recent cases wherein the reversibly inconsistent rule is criticized. These are People v Allen, 94 Mich App 539; 288 NW2d 451 (1980) (Danhof, C.J., dissenting), and People v Lewis, 94 Mich App 752; 290 NW2d 73 (1980) (M. J. Kelly, J., dissenting).

       Because defendant was acquitted of felony-firearm, he could not have been prejudiced by the jury instructions on felony-firearm. We, therefore, need not decide whether operability of the weapon must be proven to support a felony-firearm conviction.
      Among the cases where this issue has been discussed is People v Gibson, 94 Mich App 172; 288 NW2d 366 (1979).

       The judge instructed as follows regarding this element:
      "Second, that the defendants committed such assault by the use of a dangerous weapon, that is as alleged in this case, a gun, revolver, or pistol.
      "A dangerous weapon is any instrument which is used in a manner likely to produce serious physical injury or death.

        "Some instruments such as firearms, knives or bombs are dangerous because they are specifically so-designed.
      "It is immaterial whether the gun, revolver or pistol was loaded or unloaded at the time of the assault since guns are easy to load and easy to unload and because mistakes are easy to make as to whether a gun is loaded or not.”


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

text:
    MICHIGAN POWER COMPANY v STATE OF MICHIGAN
    Docket No. 78-5285.
    Submitted January 17, 1980, at Lansing.
    Decided June 2, 1980.
    Michigan Power Company, hereinafter plaintiff, brought an action against the State of Michigan and the Michigan State Highway Department, hereinafter defendants, for contribution and indemnity for part or all of any sums adjudged against plaintiff in a separate court proceeding. The separate proceeding involved the severe burning of a woman due to a fire in her home resulting from a break in an underground gas line owned and maintained by plaintiff. Plaintiff contends that defendants caused damage to the pipeline in the process of widening and replacing the street in front of the injured party’s home. The Court of Claims, John W. Baker, J., granted summary judgment to defendants. Plaintiff appeals alleging that the action comes within the exception to governmental immunity concerning failure of the state to maintain a highway in reasonable repair so that it is reasonably safe and convenient for public travel. Held:

    The maintenance and improvement of a highway is a governmental function and a plaintiff must establish negligent use or maintenance of the highway before he may invoke an exception to governmental immunity.
    Affirmed.
    Highways — Negligence — Governmental Immunity.
    The maintenance and improvement of a highway is a governmental function; unless a plaintiff establishes negligent use or maintenance of the highway he may not invoke a statutory exception to governmental immunity because of a government’s negligent use or maintenance of the highway (MCL 691.1402; MSA 3.996[102]).
    Reference for Points in Headnote [1] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 64, 341.

      Hillman, Baxter & Hammond (by Robert N.

      Hammond, William M. Bremer and Robert N. Alt, Jr.), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas J. O’Toole, Special Assistant Attorney General, for defendants.
    Before: Beasley, P.J., and D. E. Holbrook, Jr. and R. E. Robinson, JJ.

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

   D. E. Holbrook, Jr., J.

Plaintiff sought an adjudication in the Court of Claims for contribution and/or indemnity for part or all of any sums adjudged against plaintiff in a separate circuit court proceeding for damages initiated by Terry and Barbara Dutoi. Defendants obtained summary judgment on the ground that plaintiff failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Plaintiff appeals as of right. We affirm.

On June 9, 1976, there was a fire at 1214 Oak Street in Niles, Michigan, in which Barbara Dutoi was severely burned. The fire resulted from a break in an underground gas line owned and maintained by plaintiff. The gas escaped from the line and entered the home causing an explosion when Ms. Dutoi lit a cigarette.

Plaintiff contends that the defendant, in the process of widening and replacing Oak Street, caused damage to the pipeline and is responsible for the resultant injuries and damages.

It is alleged that the action comes within the exception to governmental immunity as stated in MCL 691.1402; MSA 3.996(102) in that defendant did not maintain the highway in reasonable repair so that it was reasonably safe and convenient for public travel. The specific defects concern settlement and changes in the road elevation of up to four inches.

Defendant denies liability under the governmental immunity statute. We agree. In Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976), an employee of a subcontractor who was engaged in the construction of a state highway was killed when tunneling under a railroad right-of-way. The Court held that the maintenance and improvement of a highway was a governmental function and that governmental immunity applied because the employee was not killed as a result of negligent maintenance or use of the highway.

It is conceded by plaintiff that the injured person, Barbara Dutoi, was not using the public highway for traveling purposes at the time of the incident. She was in a home located off the highway right-of-way. There was no allegation that the highway was not in reasonable repair and not in condition reasonably safe and fit for travel. Plaintiff made reference to the fact that the gas could have accumulated under the. roadway and exploded thereby rendering the roadway unsafe. This was mere speculation. There were no injuries or damages caused by traveling on the road. The explosion was in the home. The defect was not in the road.

Plaintiff did not allege sufficient facts to come within any exception to the governmental immunity statute nor do any common law precedents support that position.

Affirmed. No costs, a public question involved.