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

text:
    CONTINENTAL CASUALTY COMPANY v HURON VALLEY NATIONAL BANK
    Docket No. 77-1893.
    Submitted January 10, 1978, at Detroit.
    Decided August 22, 1978.
    David Roth, a bookkeeper employed by the Electric Apparatus Company, filed an assumed name certificate as "David Roth d/ b/a Electric Apparatus” and opened an account in that name at defendant Huron Valley National Bank. Then Mr. Roth intercepted checks payable to Electric Apparatus Company, indorsed and deposited them in the account at defendant bank. Plaintiff Continental Casualty Company paid Electric Apparatus Company for its loss after Mr. Roth’s scheme was discovered and then filed suit against defendant bank for conversion of the checks, claiming title to the checks as assignee and subrogee of Electric Apparatus Company. The Washtenaw Circuit Court, William F. Ager, Jr., J., granted defendant’s motion for accelerated judgment on the basis that plaintiffs claim is barred by the three-year statute of limitations. Plaintiff appeals. Held:

    Where a check is paid on a forged indorsement the proper statute of limitations is the three-year limitation on actions for damages for injury to property and it begins to run at the time the check is paid; where there is no express contract or express promise and defendant’s liability, if any, is implied by law, an action for damages for injury to property, such as this, is subject to the three-year statute regardless of whether the action is labeled as one in tort or implied contract.
    Affirmed.
    M. J. Kelly, J., dissented. He would hold that recovery might be had under an implied contract theory to which the six-year statute of limitations is applicable.
    References for Points in Headnotes
    [1] 18 Am Jur 2d, Conversion §§ 143, 146.
    51 Am Jur 2d, Limitation of Actions §§ 89, 91, 135.
    [2] 12 Am Jur 2d, Bills and Notes §§ 1038-1043.
    [3] 12 Am Jur 2d, Bills and Notes §§ 1044-1056.
    [4] 51 Am Jur 2d, Limitation of Actions § 101.

      Opinion of the Court
    1. Limitation of Actions — Statutes—Negotiable Instruments— Checks — Conversion—Injury to Property.
    The payee-owner of a check has suffered an injury to property within the meaning of the statute limiting actions for damages for injuries to property to three years where the check is converted (MCL 600.5805[7]; MSA 27A.5805[7]).
    2. Limitation of Actions — Statutes—Contract—Implied Contract —Injury to Property.
    An action to recover for the loss of a check is an action for injury to persons or property, subject to the three-year statute of limitations regardless of whether the action is labeled as one in tort or implied contract, where the check is converted and where there is no express contract or express promise and defendant’s liability, if any, is implied by law (MCL 600.5805[7]; MSA 27A.5805[7]).
    3. Limitation of Actions — Statutes—Conversion—Negotiable Instruments — Checks—Time Statute Begins to Run.
    The statute limiting actions for conversion of a check where the check is paid on a forged indorsement begins to run when the check is paid, not when the forgery or conversion is discovered (MCL 600.5805[7]; MSA 27A.5805[7]).
    Dissent by M. J. Kelly, J.
    4. Limitation of Actions — Statutes—Negotiable Instruments— Checks — Collecting Bank — Implied Contract.

      An assignee and subrogee of the payee-owner of checks paid on forged indorsements who sues the collecting bank for the value of the checks may recover on an implied contract theory, in which case a six-year statute of limitations is applicable (MCL 600.5813; MSA 27A.5813).

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P. C., for plaintiff.

      Rollins, White & Rollins, for defendant.
    Before: Allen, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., J.

The major issue in this case is what statute of limitations applies when a check is converted?

There are no factual disputes and plaintiff appeals the lower court’s grant of accelerated judgment in favor of defendant bank. Plaintiff Continental Casualty is the assignee and subrogee of the now-bankrupt Electric Apparatus Company which was located in Livingston County during its years of operation. This action arises out of a scheme of a bookkeeper, David Roth, who was employed by Electric Apparatus Company. In 1970 in nearby Washtenaw County Mr. Roth filed an assumed name certificate as "David Roth d/b/a Electric Apparatus” and opened an account in the name of David Roth d/b/a Electric Apparatus at defendant Huron Valley National Bank. For almost two years, Mr. Roth intercepted checks made payable to Electric Apparatus Company, indorsed them and deposited them in the account at defendant bank.

Subsequently Electric Apparatus Company sustained financial losses and was placed in bankruptcy in 1972 and operated under a receiver until 1974. In 1974, Roth’s scheme was discovered and plaintiff insurance company paid Electric Apparatus Company pursuant to its fidelity bond. Plaintiff, as assignee and subrogee, brought suit for conversion against the bank in January 1976.

The lower court concluded that plaintiff’s conversion action was one for "injury to property” and therefore barred by the three-year statute of limitations contained in MCL 600.5805(7); MSA 27A.5805(7). Plaintiff appeals and argues that the proper statute of limitations is the residual six-year limitation period contained in MCL 600.5813; MSA 27A.5813.

The lower court held the following statute of limitations, MCL 600.5805; MSA 27A.5805, controlling:

"Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.” (Emphasis added.)

The application of this statute turns on whether plaintiffs action for conversion can be characterized as an "injury to property”. This is a question of first impression in Michigan.

It is clear under the Uniform Commercial Code that when a check is paid on a forged indorsement, an action lies for conversion. In relevant part MCL 440.3419(l)(c); MSA 19.3419(l)(c) reads:

"(1) An instrument is converted when
"(c) it is paid on a forged indorsement.”

For further elaboration we look to Official UCC Comment 3 to MCL 440.3419; MSA 19.3419:

"3. Subsection (l)(c) is new. It adopts the prevailing view of decisions holding that payment on a forged indorsement is not an acceptance, but that even though made in good faith it is an exercise of dominion and control over the instrument inconsistent with the rights of the owner, and results in liability for conversion.”

This definition is consistent with Michigan cases which define the tort of conversion as an "act of dominion wrongfully exerted over another’s personal property”. Nelson & Witt v Texas Co, 256 Mich 65, 70; 239 NW 289 (1931), Thoma v Tracy Motor Sales, Inc, 360 Mich 434, 438; 104 NW2d 360 (1960), Embrey v Weissman, 74 Mich App 138, 143; 253 NW2d 687 (1977).

It is also clear that as the payee of the converted checks, Electric Apparatus is the rightful "owner” of the checks. See White and Summers, Uniform Commercial Code (1972), § 15-4, p 499. This concept of ownership is consistent with the characterization of a check as "property”. As noted in Official UCC Comment 2 to MCL 440.3419; MSA 19.3419:

"A negotiable instrument is the property of the holder. It is a mercantile specialty which embodies rights against other parties, and a thing of value.”

Although in a different setting, now Justice Levin has stated:

"When [the defendant] deliberately obliterated plaintiff’s interest in the check, it would appear on the present record that it converted property belonging to the plaintiffs * * * .” (Emphasis supplied.)

Warren Tool Company v Stephenson, 11 Mich App 274, 298; 161 NW2d 133 (1968). This is consistent with the view of courts in other jurisdictions which have deemed checks to be "property”. Fabricon Products v United California Bank, 264 Cal App 2d 113, 116; 70 Cal Rptr 50, 53 (1968).

Plaintiff argues that the three-year statute of limitations for injuries to persons or property is limited to cases where there is a physical or tangible injury, therefore, MCL 600.5805(7); MSA 27A.5805(7) does not apply in the present case since conversion involves no physical or tangible injury. We disagree. Plaintiffs argument was expressly rejected in Stringer v Sparrow Hospital, 62 Mich App 696; 233 NW2d 698 (1975), lv den, 395 Mich 768 (1975). See also Glowacki v Motor Wheel Corp, 67 Mich App 448, 459-460; 241 NW2d 240 (1976), Campos v General Motors Corp, 71 Mich App 23, 26; 246 NW2d 352 (1976). In the above cited cases, various panels have recognized that the three-year statute applies to several types of "injuries” which involve no physical or tangible damage.

Although not controlling and although in the context of different statute of limitation schemes, courts in California, New York and Tennessee have adopted a three-year statute of limitations for conversion actions based on forged indorsements. Fabricon Products, supra, Forman v First National Bank of Woodridge, 66 Misc 2d 432; 320 NYS2d 646 (1971), Gerber v Manufacturers Hanover Trust Co, 64 Misc 2d 687; 315 NYS2d 601 (1970), McConnico v Third National Bank in Nashville, 499 SW2d 874, 891 (Tenn 1973). A major purpose of the Uniform Commercial Code is to "make uniform the law among the various jurisdictions”. MCL 440.1102(2)(c); MSA 19.1102(2)(c). In this day of sophisticated interstate commercial transactions, a major purpose of the Code would be undermined if identical conversion actions were subject to widely varying statutes of limitation from state to state.

We hold that when a check is converted, the payee-owner has suffered an injury to property within the meaning of MCL 600.5805(7); MSA 27A.5805(7)._

We next turn to the issue raised in our brother’s dissent. Initially we note that plaintiff never raised an implied warranty or implied contract theory at the trial court level. On appeal plaintiff concedes that the implied warranty of good title, MCL 440.4207; MSA 19.4207, does not run in favor of a payee. The implied warranty of good title runs from a customer or collecting bank who obtains payment or acceptance of an item or transfers an item for value to each subsequent payor bank or other payor who, in good faith, pays or accepts the item. Since here plaintiff is a payee and not a payor of the item, plaintiff has no cause of action based on this theory. Even if plaintiffs "implied contract” theory had been properly raised below and even assuming the theory has merit, we would still conclude plaintiffs action is barred by the three-year statute of limitations. Where, as here, there is no express contract or express promise and defendant’s liability, if any, is implied by law, an action for injury to persons or property is controlled by the three-year statute regardless of whether the action is labeled as one in tort or implied contract. Huhtala v Travelers Ins Co, 401 Mich 118; 257 NW2d 640 (1977), Case v Goren, 43 Mich App 673, 682; 204 NW2d 767 (1972).

The only remaining issue is when the statute of limitations begins to run. We reject the plaintiffs argument that the cause of action accrues when the forgery or conversion is discovered. The statute begins to run when the checks are paid on a forged indorsement. MCL 440.3419(l)(c); MSA 19.3419(l)(c), Gerber, supra, Fuscellaro, supra, fn 1. Because plaintiff commenced its action more than three years after the checks were converted, the trial court was correct in holding the action is barred by MCL 600.5805(7); MSA 27A.5805(7).

The trial court’s grant of accelerated judgment in favor of defendant is affirmed.

Allen, P. J., concurred.

M. J. Kelly, J.

(dissenting). I agree with the majority that the three-year limitation upon actions to recover damages for "injury to property” does not necessarily mean a physical injury to tangible property, and a conversion of a check may be considered an "injury to property” under the statute. See Side v Thompson, 205 NYS2d 240, 241 (1960), Bernstein v N V Nederlandsche-Amerikaansche Stoomvaartmaatschappij, 76 F Supp 335, 344 (DC NY, 1948), Mintzer v Windsor Lamp Mfg Co, 175 Misc 551, 552; 23 NYS2d 990, 991 (1940). See also Money Corp v Draggoo, 274 Mich 527; 265 NW 452 (1936). But see Spangenberg v Spangenberg, 123 Cal App 387; 11 P2d 408 (1932), Mason v Buck, 99 Cal App 219; 278 P 461 (1929). I do not agree, however, that the plaintiffs cause of action •against defendant is necessarily limited to an action based upon conversion.

Mr. Roth intercepted the checks payable to Electric Apparatus Company and deposited them in the defendant bank for collection. Defendant, as the collecting bank, returned the checks to the drawee bank for collection and received the funds which had been paid out to the order of Mr. and/ or Mrs. Roth.

The relationship of the parties in the instant action is important in determining the rules of law to apply. The plaintiff is the assignee and subrogee of the payee of the checks which were misappropriated and is suing the collecting bank for the value of these checks.

The Uniform Commercial Code provides that a "collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such [collecting bank] dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands”. MCL 440.3419(3); MSA 19.3419(3). The code, therefore, limits an action in conversion against a collecting bank to circumstances when the collecting bank has not acted "in good faith and in accordance with reasonable commercial standards applicable to the business”. That is a question which must be answered at the trial level. We are limited to reviewing what statute of limitation applies to determine if the trial court was correct in granting an accelerated judgment for the defendant.

Many cases in other jurisdictions support the majority in holding that plaintiffs conversion action is limited by a three-year statute of limitations. The majority seems to hold that plaintiffs only remedy is under a conversion theory. Such a view is too restrictive. Many jurisdictions allow a suit brought by the payee against a collecting bank based upon implied contract or other theories. See Anno: Right of check owner to recover against one cashing it on forged or unauthorized indorsement and procuring payment by drawee, 100 ALR2d 670. Under an implied contract theory the present action would be under a six-year statute of limitations. MCL 600.5813; MSA 27A.5813. Abbott v Michigan State Industries, 303 Mich 575; 6 NW2d 900 (1942). An action under an implied contract theory is implicit in MCL 400.3419(3); MSA 19.3419(3) since the collecting bank might be liable absent good faith and reasonable commercial standards "in conversion or otherwise”. The phrase "or otherwise” indicates an implied contract action would be permissible.

The general rule is set forth in the following passage:

"Although there are a few scattered cases to the contrary, the general rule established by nearly all courts is that a bank or other corporation which, or an individual who, has obtained possession of a check upon an unauthorized or forged indorsement of the payee’s signature, and has collected the amount of the check from the drawee, is liable for the proceeds thereof to the payee or other owner, notwithstanding they have been paid to the person from whom the check was obtained, and notwithstanding the payee’s signature was forged by his employee or agent.
"The theory underlying the above rule has been expressed in various ways, all of which may be summed up in the statement that the possession of the check on the forged or unauthorized indorsement is wrongful, and when the money has been collected on the check, the bank, or other person or corporation, can be held as for money had and received and the statute of limitations governing actions on implied contracts is applicable, although there is authority to the contrary. Some courts hold that the act of the bank amounts to a conversion, and recovery may be had in a conversion action. Generally, the fact that the check in question did not reach the hands of the payee has been held to be immaterial.” (Footnotes omitted.) 10 Am Jur 2d, Banks, § 632, pp 599-601. See also 9 CJS, Banks and Banking, § 357, p 763.

In a New York Supreme Court case, Forman v First National Bank of Woodridge, 66 Misc 2d 433; 320 NYS2d 648; 9 UCC Rep 285, 286 (1971), a check was issued on which the plaintiffs and a third corporate party were co-payees. Plaintiffs’ endorsements were forged, and defendant collecting bank wrongfully disposed of the proceeds by crediting the account of the corporate payee. The court noted that the transaction predated the effective date of subdivision 3 of 3-419 of the UCC. The defendant had relied on this provision in seeking immunity from liability for the collecting bank. The second ground urged by the defendant was that the action was in contract and should have been dismissed since it was not commenced within six years of its inception. The court found that the defendant was correct, and stated:

"This action is against a collecting bank as distinguished from a drawee bank. If the action were against the latter institution it would be in conversion and governed by a yet shorter statute (§ 3-419[l] [c] UCC). Where, however, the action is against a collecting bank that paid out proceeds of a negotiable instrument on forged endorsements, the action is in contract and governed by the six year statute. The Court of Appeals in Henderson v Lincoln Rochester Trust Co, 303 N.Y. 27, at 32 and 33, 100 N.E.2d 117 at 120, quotes 9 C.J.S. Banks and Banking § 357, p. 763 as follows:
" 'Where a collecting bank cashes a check on a forged instrument, a different principle applies; there the bank in collecting the check holds the proceeds for the payee, thereby establishing a privity in permitting the payee to maintain an action against such bank for the amount of the check, if he elects to ratify the collection.’ The Henderson case is also authority for the position that such an action must be commenced within six years after the wrongful payment.” 320 NYS2d at 649-650.

The rationale in the Henderson case was a sort of a common counts money had and received, and the opinion concludes:

"To put it in other words, a collecting bank is merely an agent for the purpose of collecting from the drawee bank the proceeds of the check delivered to it. When it takes the check for collection, it assents to the agency and becomes bound by the terms of the instrument received. Those terms include an obligation to pay the proceeds collected to the true payee owner in the absence of a valid indorsement. The moment the collecting bank receives the proceeds it holds money belonging to the owner of the check and becomes a debtor of such owner and of no one else in the absence of a valid indorsement.” (Emphasis in original.) Henderson v Lincoln Rochester Trust Co, 303 NY 27, 33; 100 NE2d 117, 120 (1951).

In a Massachusetts case, Stone & Webster Engineering Corp v First National Bank & Trust Co, 345 Mass 1; 184 NE2d 358; 99 ALR2d 628 (1962), the drawer of checks that had never been delivered to the payee sought recovery of the amount of the checks from a collecting bank which had cashed the checks for the person who had forged the payee’s endorsement. The collecting bank had received the amount of the check from the drawee bank, which, in turn, had refused to recredit the drawer’s account. The Supreme Judicial Court of Massachusetts held that the drawer had no right of action against the collecting bank for money had and received, conversion or negligence in cashing the checks. The court noted:

"The plaintiff relies upon the Uniform Commercial Code, G.L. c. 106, § 3-419, which provides,
" '(1) An instrument is converted when * * * (c) it is paid on a forged indorsement.’ This, however, could not apply to the defendant, which is not a 'payor bank,’ defined in the Code, § 4-105 (b), as 'a bank by which an item is payable as drawn or accepted.’ See Am. Law Inst Uniform Commercial Code, 1958 Official Text with comments, § 4-105, comments 1-3; G.L. c. 106, §§ 4-401, 4-213, 3-102(b).
"A conversion provision of the Uniform Commercial Code which might have some bearing on this case is § 3-419(3). This section implicitly recognizes that, subject to defences, including the one stated in it, a collecting bank, defined in the Code, § 4-105(d), may be liable in conversion. In the case at bar the forged indorsements were 'wholly inoperative’ as the signatures of the payee, Code §§ 3-404(1), 1-201(43), and equally so both as to the restrictive indorsements for deposit, see § 3-205(c), and as to the indorsement in blank, see § 3-204(2). When the forger transferred the checks to the collecting bank, no negotiation under § 3-202(1) occurred, because there was lacking the necessary indorsement of the payee. For the same reason, the collecting bank could not become a 'holder’ as defined in § 1-201(20), and so could not become a holder in due course under § 3-202(1). Accordingly, we assume that the collecting bank may be liable in conversion to a proper party, subject to defences, including that in § 3-419(3). See A. Blum Jr.’s Sons v Whipple, 194 Mass 253, 255 [80 NE 501, 13 LRA NS, 211]. But there is no explicit provision in the Code purporting to determine to whom the collecting bank may be liable, and, consequently, the drawer’s right to enforce such a liability must be found elsewhere. Therefore, we conclude that the case must be decided on our own law, which, on the issue we are discussing, has been left untouched by the Uniform Commercial Code in any specific section.” (Footnote omitted, deletions in original.) 345 Mass at 5-6.

The court recognized that the authorities were hopelessly divided on the question of recovery under the theory of conversion. The court stated: "We think that the preferable view is that there is no right of action.” 345 Mass at 7.

Absent a showing of bad faith and lack of reasonable commercial standards, since the defendant has paid over all the proceeds it should have no liability under a theory of conversion or any other theory. MCL 440.3419(3); MSA 19.3419(3), and Steinheimer, Practice Commentary, 22 MCLA 363,364, "As to the check, however, the defendant bank is in the position of a 'depository or collecting bank’ which had paid over the proceeds, hence it should have no liability for conversion under section 3419(3). The provision in section 3419(3) against liability 'in conversion or otherwise’ serves to eliminate liability in assumpsit.”

But the question of good faith and use of reasonable commercial standards has not been confronted by the trial court. Plaintiff should not be foreclosed from proceeding on a contract theory. We have abolished technical forms of pleading, GCR 1963, 12, and plaintiff is not limited to proceed with an action premised on "conversion”, as long as it sets forth facts which entitled it to civil relief under some other theory. Of course the abolition of distinction in forms of action does not preclude an application of statutes of limitation based upon differences in forms of action. Williamson v Columbia Gas and Electric Corp, 110 F2d 15 (CA 3, 1939), cert den, 310 US 639; 60 S Ct 1087; 84 L Ed 1407 (1940). So while plaintiff is foreclosed on a conversion theory, it is not foreclosed from maintaining an action based upon a contract theory if the facts entitle it to recover under such a theory.

I would reverse and remand.

         But see Fuscellaro v Industrial National Corp, 368 A2d 1227 (RI 1977).


source: Caselaw Access Project

author: M. F. Cavanagh, P. J.

license: Public Domain

text:
    MOSLEY v FEDERAL DEPARTMENT STORES, INC.
    Docket No. 77-2151.
    Submitted May 2, 1978, at Detroit.
    Decided August 22, 1978.
    Security guards in a Federáis Department Store detained Mario Landers on suspicion of shoplifting. He was accompanied by his grandmother, Delores Mosley. Delores Mosley, her husband Herbert Mosley and Mario Landers brought an action against Federáis, seeking damages for mental anguish. A count in plaintiffs’ complaint, entitled "Intentional Infliction of Emotional Distress”, pled facts sounding both in that claim and in false imprisonment. The Wayne Circuit Court, Neal Fitzgerald, J., determined that under the statute governing actions against merchants arising out of shoplifting incidents a plaintiff is limited to certain types of actions, including false imprisonment, and that therefore the action was one for false imprisonment and the Mosley’s claims were barred by the two-year statute of limitations applicable to such actions. The statute does not affect Mario Landers’ claim because he is a minor. Defendant’s motion for accelerated judgment as to the Mosleys only was granted, and the Mosleys appeal by leave granted. Held:

    1. The statute does not limit the type of actions which may be brought against a storeowner. Intentional infliction of mental distress is recognized as a separate cause of action, and the trial court erred in determining that the present action was really one for false imprisonment.
    2. The tort of intentional infliction of mental distress is subject to a three-year statute of limitations; therefore, the grant of defendant’s motion for accelerated judgment was error because the action was brought within three years.
    Reversed.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 148, 232, 272-275.
    [2] 50 Am Jur 2d, Larceny § 50.
    73 Am Jur 2d, Statutes §§ 430-434.
    [3] 74 Am Jur 2d, Torts § 27.
    [4] 51 Am Jur 2d, Limitation of Actions § 61 et seq.

    [5] 1 Am Jur 2d, Actions § 1.
    [6] 51 Am Jur 2d, Limitation of Actions § 102 et seq.

      1. Statutes — Construction—Express Provisions — Legislative Purpose.
    The express mention of one thing in a statute excludes other, similar things; however, this rule of statutory construction cannot substitute for the legislative purpose underlying a particular statute.
    2. Action — Statutes—Action Against Merchant — Burden of Proof — Type of Action.
    A statute which concerns the damages allowable to a person who was suspected of shoplifting in an action against a merchant arising out of the shoplifting incident establishes the burden of proof which a plaintiff seeking to recover damages must meet, but does not limit the types of actions which a plaintiff can bring against the merchant (MCL 600.2917; MSA 27A.2917).
    3. Torts — Intentional Infliction of Mental Distress — Cause of Action.
    Intentional infliction of mental distress is a separate cause of action, not merely an aggravating element of damages dependent on another cause of action.
    4. Appeal and Error — Limitation of Actions — Label on Action— Interest Injured.
    The Court of Appeals must examine both the label placed on a plaintiff’s action and the type of interest that was allegedly injured in order to apply the correct statute of limitations.
    5. Action — Causes of Action — Facts—Interest Injured.
    One set of facts may give rise to two causes of action, depending on the interest that is injured.
    6. Limitation of Actions — Intentional Infliction of Mental Distress — Statutes.
    An action for intentional infliction of mental distress is subject to a three-year statute of limitations (MCL 600.5805[7]; MSA 27A.5805[7]).

      Peter R. Barbara and Frank G. Becker, for plaintiffs.

      John N. Highland Gay J'■ R- Zanetti, Jr.), for defendant.

      Before: M. F. Cavanagh, P. J., and Bronson and D. F. Walsh, JJ.
   M. F. Cavanagh, P. J.

Plaintiffs Delores and Herbert Mosley appeal from the trial court’s granting of the defendant’s motion for accelerated judgment. The court below, interpreting MCL 600.2917; MSA 27A.2917, ruled that the statute of limitations barred plaintiffs’ action.

On November 6, 1974, defendant’s security guards detained the plaintiffs’ grandson in the defendant’s store, apparently for suspected shoplifting. After two years but before three years had passed, plaintiffs, including the grandson, brought suit. In the complaint, plaintiff Delores Mosley (hereinafter "plaintiff”) sets forth facts on Count I, labeled "Intentional Infliction of Emotional Distress”, which appear to sound both in that claim and also in false imprisonment, and seeks damages for mental anguish. Plaintiff asserts that the gist of her action is that of intentional infliction of mental distress, governed by a three-year statute of limitations; defendant insists that the claim is one for false imprisonment, but that in any event MCL 600.2917; MSA 27A.2917, by its express terms, limits a plaintiff seeking damages for mental anguish to, among others, an action for false imprisonment. Using either of defendant’s arguments, the plaintiffs’ action is now barred by the expiration of the two-year statute of limitations set out in MCL 600.5805(1); MSA 27A.5805(1). Plaintiff asserts the trial court erred in adopting this line of reasoning in granting defendant’s motion.

Before discussing the nature of the plaintiff’s complaint, we must first evaluate the interpretation of § 2917 urged by the defendant and adopted by the trial court. A reading of applicable case law and commentary persuades us that this interpretation is erroneous, partly as a result of the admitted confusion surrounding the distinction between mental anguish as an element of damages recoverable in a false imprisonment action and the distinct action for intentional infliction of mental distress. More pertinently, it results from a misapprehension of the nature and purpose of the statute itself.

MCL 600.2917; MSA 27A.2917 provides:

"In any civil action against a merchant, his or its agent, for false imprisonment, unlawful arrest, assault, battery, libel or slander, if the claim arose out of conduct involving a person suspected of removing or of attempting to remove from a store without right or permission goods held for sale therein, where the merchant, his or its agent had probable cause for believing and did believe that the plaintiff had committed or aided or abetted in the larceny of goods held for sale in the store, no damages for or resulting from mental anguish and no punitive, exemplary or aggravated damages shall be allowed a plaintiff, excepting when it is proved that the merchant, or his or its agent used unreasonable force or detained plaintiff an unreasonable length of time or acted with unreasonable disregard of plaintiff’s rights or sensibilities or acted with intent to injure plaintiff.” (Emphasis supplied.)

The defendant contends that whenever a shoplifting incident provides the factual basis for a plaintiffs claim, the specific mention of damages for mental anguish in MCL 600.2917; MSA 27A.2917 precludes their recovery in any action other than those six enumerated in the statute. Even if plaintiff has an otherwise cognizable action for damages due to intentional infliction of mental distress, the statute requires the court to read the factual allegations in the complaint as stating an action for false imprisonment.

While it is correct that the express mention of one thing in a statute excludes other, similar things, Stowers v Wolodzko, 386 Mich 119; 191 NW2d 355 (1971), People v Malik, 70 Mich App 133; 245 NW2d 434 (1976), this maxim of statutory interpretation cannot substitute for the legislative purpose underlying a particular statute. Chesapeake & O R Co v Public Service Comm, 59 Mich App 88, 101; 228 NW2d 843, 851 (1975), lv den, 394 Mich 818 (1975). In Bonkowski v Arlan’s Department Store, 383 Mich 90, 102-103; 174 NW2d 765, 769-770 (1970), the Michigan Supreme Court analyzed the history of § 2917 to construe the statute. Admittedly, § 2917 has a protective purpose; it in effect allows storeowners who suspect individuals of shoplifting to detain them without fear of a recovery of exemplary damages or damages beyond the purely compensatory, at least where the storeowner acted with probable cause, Bonkowski, supra, at 104; 174 NW2d at 770. Short of granting storeowners a statutory privilege to temporarily detain, Hawkins, Practice Commentary, 33 MCLA 681, the Legislature instead chose to place an additional burden of proof on a plaintiff seeking to recover damages, by requiring a showing that the storeowner acted with unreasonable force or the detention lasted an unreasonable time. The statute thus conditions a plaintiffs recovery upon proof of the storeowner’s unreasonableness; § 2917 imposes nothing more than an additional burden of proof upon any plaintiff who seeks aggravated damages in actions against storeowners arising from a shoplifting incident. Bonkowski, supra. Nothing, therefore, in the history and purpose of § 2917 indicates that the Legislature intended it to limit the type of actions a plaintiff could bring against a storeowner.

Defendant’s erroneous interpretation of the statute may also stem from the theoretical confusion surrounding the distinction between damages for mental anguish incident to an independent tort such as false imprisonment and the vindication of the individual’s right to undisturbed mental tranquility through an action for intentional infliction of mental distress. The thin line separating these two concepts has plagued courts and litigants alike, and led some courts to resist the concept of mental tranquility as a separate interest deserving legal protection. See 64 ALR2d 100, 103-109, Prosser, Torts (4th ed), § 12, pp 49-52. Nevertheless, Michigan courts delineated intentional infliction of mental distress as a separate cause of action which "need not be parasitic to a separate cause of action as an aggravating element of damages”. Campos v General Motors Corp, 71 Mich App 23, 25; 246 NW2d 352, 353 (1976). Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386; 239 NW2d 380 (1976), Frishett v State Farm Mutual Automobile Ins Co, 3 Mich App 688; 143 NW2d 612 (1966), lv den, 378 Mich 733 (1966). The trial court’s misapprehension of the meaning of § 2917 thus appears additionally influenced by its failure to distinguish mental distress as an element, of damages from the separate cause of action for intentional infliction of mental distress.

From our determination that MCL 600.2917; MSA 27A.2917, does not operate to limit a plaintiff in his choice of the form or legal theory for his action, we must turn to a consideration of the nature of plaintiff’s action and the applicable statute of limitations. At the outset we note that the statute of limitations is two years for false imprisonment actions, MCL 600.5805(1); MSA 27A.5805(1); actions for intentional infliction of mental distress fall within the language of MCL 600.5805(7); MSA 27A.5805(7), and must be brought within three years from the accrual of the action. Campos v General Motors Corp, supra, at 26; 246 NW2d at 354. In applying the correct statute of limitations to this case, we must examine both "the label placed upon the plaintiff’s action and the type of interest that was allegedly injured”. Stringer v Board of Trustees of Edward W Sparrow Hospital, 62 Mich App 696, 698-699; 233 NW2d 698, 699-700 (1975), lv den, 395 Mich 768 (1975).

Plaintiff has denominated Count I of the complaint "Intentional Infliction of Emotional Distress” and alleges defendant’s security guards’ verbal abuse of her during their detention of her grandson and the outrageous character of their actions as the basis of her claim. Although paragraph 5(e) of Count I of the complaint appears to sound in false imprisonment, the plaintiff also has alleged that conduct by the security guards invaded her right to mental tranquility, thus causing her mental suffering. As this Court pointed out in Campos v General Motors Corp, supra, at 25-26; 246 NW2d at 354, discussing closely similar facts, one set of facts may give rise to two causes of action depending on the interest injured. Taking the well-pled allegations as true, as well as all reasonable inferences from them, as we must, Williams v Polgar, 391 Mich 6, 11; 215 NW2d 149, 151 (1974), we find that plaintiff is basing her claim on a theory of intentional infliction of mental distress. Such an action is governed by the three-year statute of limitations in MCL 600.5805(7); MSA 27A.5805(7); the plaintiffs action is thus not barred.

One word of caution is appropriate. Any allegation in the complaint that sounds in false imprisonment is barred by the statute of limitations under MCL 600.5805(1); MSA 27A.5805(1); plaintiff will thus be limited at trial to her proofs on her action for intentional infliction of mental distress.

Reversed. Plaintiffs may tax costs.

       Plaintiff Herbert Mosley’s action for loss of consortium is derivative to plaintiff Delores Mosley’s; its fate, while governed by the outcome of the appeal of the wife’s claim, is thus outside the scope of the immediate discussion.


text:
    PEOPLE v McPHERSON
    Docket No. 77-2216.
    Submitted May 4, 1978, at Detroit.
    Decided August 22, 1978.
    Leave to appeal applied for.
    Edward A. McPherson was convicted of breaking and entering an occupied dwelling with intent to commit larceny, Recorder’s Court of Detroit, Irwin Burdick, J. The only inculpating evidence presented by the people was the testimony of a police officer who accompanied a tracking dog that was put on the trail of the perpetrator of the crime and led the officer to the defendant. The defendant appeals. Held:

    Tracking dog evidence, standing alone, is insufficient to support a conviction.
    Reversed.
    1. Evidence — Criminal Law — Tracking Dog Evidence.
    Tracking dog evidence is admissible in Michigan; however, such evidence, standing alone, cannot support a criminal conviction.
    2. Criminal Law — Appeal and Error — Motions—Directed Verdict of Acquittal — Reasonable Doubt.
    A reviewing court, in passing on a motion for a directed verdict of acquittal in a criminal case, must consider only the evidence which had been introduced at the time the motion was made, view that evidence in the light most favorable to the prosecution, and determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt.
    References for Points in Headnotes
    [1] 30 Am Jur 2d, Evidence § 1146.
    [2] 5 Am Jur 2d, Appeal and Error § 885.

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

      Miller, Amberg & Cristini, P. C., for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and D. F. Walsh, JJ.
   M. F. Cavanagh, P. J.

Following a jury trial defendant was convicted of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He was sentenced to three years probation, the last six months of which were to be served in the Detroit House of Correction if the terms of probation were not met. From a denial of a motion for new trial or judgment notwithstanding the verdict, defendant appeals of right.

The theory of the defense was alibi. Several witnesses, friends of the defendant, testified as to his whereabouts around the time the offense was alleged to have occurred. Other evidence supportive of the defendant was testimony that fingerprints taken at the scene did not match those of the defendant. The only inculpating evidence presented by the people was the "testimony” of one Chad. It is undisputed that Chad is highly trained and proficient at his skill. Moreover, the police officer accompanying this witness was equally well trained and testified without contradiction that ground and weather conditions at the time were optimum.

At trial, the defendant never took the stand. Neither did Chad. Chad is a police tracking dog.

The sole issue presented in this appeal is one of first impression in this state: whether evidence of identification presented through testimony concerning the actions of a police tracking dog, standing alone, is sufficient to allow the jury to find a defendant guilty beyond a reasonable doubt. -

We accept the premise that tracking dog evidence is admissible in Michigan. People v Norwood, 70 Mich App 53, 55; 245 NW2d 170 (1976), lv den, 397 Mich 884 (1976), and People v Harper, 43 Mich App 500, 508; 204 NW2d 263 (1972), lv den, 389 Mich 759 (1973). From this premise, the people argue that the tracking dog evidence is, therefore, "any evidence” upon which a jury could base a finding of guilt and that the standard of review enunciated in People v Garcia, 398 Mich 250, 256; 247 NW2d 547 (1976), requires us to affirm this conviction. We disagree. This case provides an excellent example of how the standard of review on a sufficiency of the evidence question has been semantically disfigured. While the evidence presented here is certainly "any” evidence, we are equally certain, because of the authority outlined below, that this evidence is not "sufficient”. We reaffirm this Court’s elucidation of the proper standard of review in People v Royal, 62 Mich App 756, 757-758; 233 NW2d 860 (1975):

"In passing on a motion for a directed verdict of acquittal in a criminal case, the reviewing court must 1) consider only the evidence which had been introduced at the time the motion was made, People v DeClerk, 58 Mich App 528; 228 NW2d 447 (1975), 2) view that evidence in the light most favorable to the prosecution, People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), People v Watkins, 36 Mich App 380, 385; 193 NW2d 914 (1971), and 3) determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt. People v Belcher, 29 Mich App 341, 352; 185 NW2d 440 (1971), People v Hood, 37 Mich App 195, 197; 194 NW2d 472 (1971).” (Footnotes omitted.)

In determining the sufficiency of this evidence we note that no authority has been presented to us, nor have we found any, which indicates that tracking dog evidence, standing alone, can support a conviction. The necessity of corroboration appears uniform.

"Courts adhering to the view that bloodhound evidence is admissible concede that such evidence is to be accepted with caution and is not, under any circumstances, to be regarded as conclusive evidence of guilt. It is generally held that this class of evidence is cumulative or corroborative only. Such evidence is at best a circumstance to be considered by the jury in connection with all the other proof in the case, in determining the guilt or innocence of the accused. It is not conclusive evidence of guilt and, standing alone, is not sufficient to sustain a conviction; there must be other and human testimony to convict. Statements are frequently found in the cases to the effect that bloodhound evidence is of little probative value and is not looked upon with favor. A conviction resting in part upon bloodhound evidence cannot be supported where the other evidence tending to show guilt is fragmentary and unsubstantial.” 30 Am Jur 2d, Evidence, § 1146, p 322. (Footnotes omitted.) (Emphasis added.)

The necessity of corroborating evidence to support a conviction is also discussed in Anno: Evidence of trailing by dogs in criminal cases, 18 ALR3d 1221, 1237:

"It has generally been held or recognized that bloodhound evidence properly admitted in evidence in the trial of a criminal case is not of itself sufficient to support a conviction.”

The annotation goes on to provide authority from Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, and Tennessee for the rule. No citation is provided for a minority view.

Further:

"Courts adhering to the view that bloodhound evidence is admissible concede that such evidence is to be accepted with caution, and is not under any circumstances to be regarded as conclusive evidence of guilt. It is generally held that this class of evidence is cumulative or corroborative only, and not sufficient of itself to support a conviction. This appears to be the trend of the cases set out in the annotations in L.R.A. and Ann. Cas., and has been definitely held in several of the more recent cases. See State v Fixley (1925) 118 Kan 1, 233 796; Meyers v Com (1922) 194 Ky 523, 240 SW 71; State v Freyer (1932) 330 Mo 62, 48 SW (2d) 894; State v Yearwood (1919) 178 NC 813, 101 SE 513; Copley v State (1926) 153 Tenn 189, 281 SW 460. And see dissenting opinion in State v Grba (1923) 196 Iowa 241, 194 NW 250, and State v Harrison (1921) 149 La 83, 88 So 696.” Anno: Evidence of trailing by dogs, 94 ALR 413, 425-427.

The reasons for the necessity of corroborating evidence can be gleaned from the arguments against the admission of tracking dog evidence:

"The principal objections to the use of bloodhound evidence appear to be: (1) That the many variable factors involved, such as the training and experience of the dogs, the manner in which they are handled, the circumstances surrounding the trailing, etc., as well as the inability of the court to check up on the dogs and tell why they acted as they did, make such evidence too uncertain and unreliable to warrant its admission in the trial of a criminal case; (2) that the jury, due to the superstitious awe with which people regard the actions of animals, are likely to give more weight to such evidence than it is entitled to, particularly where it is introduced in connection with some heinous crime about which there has been much public indignation ¿nd excitement; (3)' that the life and liberty of a free citizen ought not to be put in jeopardy on the testimony of dogs; (4) that the defendant cannot cross-examine the dogs; (5) that such evidence is hearsay; and (6) that the defendant is deprived of his constitutional right to confront the witnesses against him.” (Footnote omitted.) 18 ALR3d at 1223-1224.

In the, two reported Michigan cases in which tracking dog evidence was admitted and a conviction resulted, there was corroborating evidence. People v Harper, supra, People v Norwood, supra.

We are persuaded, therefore, that the great weight of authority supports the logical rule that tracking dog evidence, standing alone, is insufficient to support a conviction.. In so holding, we intend no criticism of the cunning canine, Chad, or his progeny. Certainly evidence doggedly gleaned from the efforts of these hounds has been held in high esteem for centuries, as noted in Blair v Commonwealth, 181 Ky 218, 220-221; 204 SW 67 (1918):

"If we may credit Sir Walter Scott, such evidence was looked upon with favor as early as the twelfth century. In 'The Talisman’ it is related that in the joint crusade of Richard I of England and Philip II of France, Roswell, the hound, pulled from the saddle Conrade, Marquis of Montserrat, thus mutely accusing him of the theft of the banner of England. Philip defended the Marquis with the remark, 'Surely the word of a knight and a prince should bear him out against the barking of a Cur.’ To which Richard replied, 'Royal brother, recollect'that the Almighty who gave the dog to be companion of our pleasures and toils, both invested him with a nature noble and incapable of deceit. He forgets neither friend nor foe; remembers, and with accuracy, both benefit and injury. He hath a share of man’s intelligence, but no share of man’s falsehood. You may bribe a soldier to slay a man with his sword, or a witness to take life by false accusation; but you cannot make a hound tear his benefactor; he is the friend of man save when man justly incurs his enmity. Dress yonder Marquis in what peacock robes you will, disguise his appearance, alter his complexion with drugs and washes, and hide himself amidst a hundred men, I will yet pawn my sceptre that the hound detects him, and expresses his resentment, as you have this day beheld.’ ”

After extended discussion of relevant authority, this tribute was also noted by Barefoot, Judge, in the case of Buck v State, 77 Okla Cr App 17, 35-36; 138 P2d 115 (1943), wherein he stated:

"In view of this testimony, we have decided that the tribute to the hound by Richard I of England, as above quoted, shall be a monument or tribute to 'Old Boston,’ and for this reason we perpetuate his name in the law books of this state. Though the state has not erected a monument to his memory, his services will ever be remembered, not only in the instant case but others.
"As above stated, the evidence in this case is almost wholly based upon circumstantial evidence, and while we recognize the rule announced in the decisions which have been cited, that a conviction will not be upheld upon the evidence alone of trailing by bloodhounds, yet that evidence being competent as a circumstance, together with the other evidence in the case, where competent proof has been given as to the qualifications, training and experience of the bloodhounds used, as in the instant case, this testimony together with the other evidence in the case presented a question of fact for the jury to pass upon as to the guilt or innocence of the defendant.” (Emphasis added.)

In the instant case, the supporting "other” evidence which enabled "Old Boston” to track himself into the law reports of Oklahoma does not exist for "Chad”. The evidence presented being insufficient to support a conviction, we reverse.


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

text:
    PEOPLE v McQUEEN
    Docket No. 77-2565.
    Submitted May 3, 1978, at Lansing.
    Decided August 22, 1978.
    Jesse McQueen was convicted of armed robbery and assault with intent to commit murder, Genesee Circuit Court, Thomas C. Yeotis, J. Defendant appeals alleging that the trial court erred by denying the defendant’s motion for a mistrial based upon testimony elicited during the direct examination of a prosecution witness who alluded to the defendant’s past incarceration and that testimony elicited on cross-examination from a prosecution witness concerning “mug shots” of the defendant was prejudicial and requires reversal. Held:

    The references to the defendant’s past incarceration and the "mug shots” of the defendant were inadvertent and did not constitute reversible error in the absence of a persuasive showing of prejudice.
    Affirmed.
    N. J. Kaufman, J., dissented. He would hold that the reference to the "mug shots” was not inadvertent since it was made by a police sergeant who should have known what legal subjects should not be adverted to during a trial and because the prosecution should have cautioned its witnesses not to refer to mug shots or other inadmissible areas of potential testimony. He would reverse and remand for a new trial.
    Opinion op the Court
    1. Criminal Law — New Trial — Abuse op Discretion — Witnesses— Prosecution Witness — Defendant’s Past Incarceration.
    It was not an abuse of a trial court’s discretion to deny a defendant’s motion for a mistrial based upon testimony, elicited during direct examination of a prosecution witness, alluding to the defendant’s past incarceration where the prosecutor neither hoped for nor anticipated the elicitation of prejudicial testimony from his line of questioning of the witness and where there is an absence of a persuasive showing of prejudice.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 126, 127.
    [2] 5 Am Jur 2d, Appeal and Error §§ 797, 801.
    58 Am Jur 2d, New Trial § 29.

      Dissent by N. J. Kaufman, J.
    2. Criminal Law — Evidence—Appeal and Error — Witnesses—-Mug Shots — Cross-Examination.

      A defendant’s conviction should be reversed and the matter remanded for a new trial where a police sergeant appearing as a prosecution witness, in response to questions by defense counsel who studiously avoided the use of the prejudicial term "'mug shots”, gave nonresponsive answers and referred to "mug shots” when cross-examined by defense counsel as to whether he had shown photographs of the defendant to anyone, and if so, to whom.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      Michael H. Leavitt, for defendant on appeal.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   J. H. Gillis, P. J.

Defendant was tried and convicted by a jury of armed robbery, contrary to MCL 750.529; MSA 28.797, and assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278. He was subsequently sentenced to 15 to 30 years in prison and now appeals as of right.

Defendant first contends that the trial court abused its discretion when it denied defendant’s motion for a mistrial based upon the testimony elicited during the examination of a prosecution witness who alluded to defendant’s past incarceration. We disagree.

The testimony at issue was given in response to the following questions:

"Q [by the prosecutor] Did you know Jessee McQueen [the defendant] in December, 1976?
"A Yes, sir.
"Q How long had you known him up to that time?
"A I first met him, it was either late part of August, first part of September, when he gotten out of county jail”

It cannot be said that the prosecutor anticipated or hoped to elicit prejudicial testimony from the aforementioned line of questioning. Cf. People v Greenway, 365 Mich 547; 114 NW2d 188 (1962).

The case of People v Harry Fleish, 321 Mich 443; 32 NW2d 700 (1948), is dispositive of defendant’s claim.

"We think the record does not justify the conclusion that this improper testimony was deliberately injected into the case by the prosecutor. * * * Inadvertent irregularities of this character are bound to occur in the course of prolonged, hotly contested trials, and when, as in the instant case, the objectionable testimony is purged from the record by the trial court, the irregularity should not be held to constitute reversible error in the absence of a persuasive showing of prejudice.” People v Fleish, supra, at 462-463. Also see People v Solis, 32 Mich App 191; 188 NW2d 166 (1971).

Defendant next contends that testimony elicited on cross-examination from a prosecution witness concerning "mug shot” photographs of defendant was prejudicial and requires reversal of his convictions. This argument fails in light of the aforementioned discussion.

Defendant’s final allegation of error fails in light of People v Bills, 53 Mich App 339; 220 NW2d 101 (1974).

Affirmed.

D. E. Holbrook, J., concurred.

N. J. Kaufman, J.

(dissenting). I must respectfully dissent from that portion of the majority opinion dealing with mug shots. While defense counsel was questioning the investigating officer assigned to this case, Sergeant Hazenfratz, the following colloquy occurred:

"Q Did you ever show pictures of the defendant to anyone?
"A Mug shots.
"Q Who did you show pictures to?
"A Mrs. Curran.
"Q Anyone else?
"A Ah, her grand niece observed them on two occasions.
"Q Was there anyone that you showed any pictures to?
"A Not actual mug shots, I don’t believe.”

The majority opinion apparently concluded that the "improper testimony was [not] deliberately injected into the case by the prosecutor”. In a narrow sense, that is correct; the question was asked by defense counsel. But it strains credulity for the reasons set forth below to suggest that the exchange quoted above should be excused as inadvertent.

First, the improper testimony was offered by a prosecution witness. Although that fact alone is not enough to prove "deliberateness”, where the witness is a law enforcement official, especially a police sergeant, it is not too much to suggest that those witnesses should know what legal subjects should not be adverted to during a trial. Certainly, it would not be too much to expect that the prosecutor would caution his witnesses not to refer to mug shots or other inadmissible areas of potential testimony such as polygraphs or whether or not defendant exercised his right to silence upon arrest.

Second, defense counsel studiously avoided using the term "mug shots”. In fact, his questions do not, in the least, suggest an answer of "mug shots”. The first question demanded a "yes” or "no” answer. The fourth question specifically demanded an answer in terms of a person’s name. The second reference to mug shots was definitely nonresponsive.

In People v Heller, 47 Mich App 408, 411; 209 NW2d 439 (1973), this Court noted:

"[T]hat where a defendant has not taken the stand, an unedited mug shot would impermissibly place the defendant’s prior conviction if any before the trier of fact and result in reversible prejudice.”

In this case, the verbal imagery was every bit as direct, and just as prejudicial. I would reverse defendant’s conviction and remand for a new trial.


author: B. M. Hensick, J.

text:
    PEOPLE v MORGAN
    Docket No. 77-2939.
    Submitted June 23, 1978, at Detroit.
    Decided August 22, 1978.
    Defendant Herman N. Morgan was convicted on his plea of guilty of carrying a pistol in a motor vehicle and placed on probation. During the term of his probation he was arrested again for carrying a weapon in a motor vehicle. A notice of probation violation and warrant were issued and a probation revocation hearing was held and the Recorder’s Court of Detroit, Joseph A. Gillis, J., revoked defendant’s probation and sentenced him to a flat five years in prison on his original conviction. Defendant appeals. Held:

    1. The sole question on review of a finding of violation of probation is whether the trial judge could find by a preponderance of the evidence that the probation order had been violated.
    2. It was proper for a judge to consider hearsay testimony at a probation revocation hearing because such hearings are summary and informal and not subject to the rules of evidence applicable in criminal trials.
    3. The imposition of a flat five years sentence in this case was improper because the indeterminate sentence act applies.
    Affirmed and sentence modified.
    1. Criminal Law — Probation—Revocation Hearing — Review of Finding — Evidence.
    The sole question on review of a finding of violation of probation is whether the trial judge could find by a preponderance of the evidence that the probation order had been violated.
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    Comment note — procedural requirements, under Federal Constitution, applicable to revocation of probation or parole. 36 L Ed 2d 1077.
    [3] 21 Am Jur 2d, Criminal Law § 614.

      2. Criminal Law — Probation—Revocation Hearing — Evidence-Hearsay — Statutes.
    It is proper for a judge to consider hearsay testimony at a probation revocation hearing because such hearings are summary and informal and not subject to the rules of evidence applicable in criminal trials (MCL 771.4; MSA 28.1134).
    3. Criminal Law — Sentences—Indeterminate Sentences — Repeat Offender — Habitual Criminal — Statutes.
    The indeterminate sentencing statute applies to a defendant who is a repeat offender where the defendant was not charged or convicted under the habitual criminal act (MCL 769.8, 769.12; MSA 28.1080, 28.1084).

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

      Adam J. Dadaou, P. C. (by David A. Stevens), for defendant.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   B. M. Hensick, J.

On October 11, 1973, defendant was placed on three years probation after pleading guilty to carrying a pistol in a motor vehicle. MCL 750.227; MSA 28.424. One of the conditions of probation was that defendant was to have no contact with guns. On April 19, 1976, defendant was arrested for carrying a weapon in a motor vehicle.

A notice of probation violation and warrant were issued on March 3, 1977. On June 9, 1977, a probation violation hearing was held. At this hearing, the court, revoked defendant’s probation and sentenced him to a term of five years in prison on the original conviction. Defendant appeals as of right. .

Defendant first contends that he was denied due process at the probation violation hearing. After reviewing the hearing transcript, we find that defendant was afforded the minimum due process requirements delineated in Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972).

Defendant also contends that the lower court abused its discretion in finding that he had violated the terms of his probation.

The sole question on review of the finding of violation of probation is whether the trial judge could find by a preponderance of the evidence that the probation order had been violated. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975). We look to see if the revocation was "based on verified facts” and if the trial judge’s exercise of discretion was "informed by an accurate knowledge of the [probationer’s] behavior”. Morrissey v Brewer, supra at 484.

In the instant case, the proofs established the presence of a gun on the front seat of the vehicle in which defendant was an occupant, that the gun had been recently fired and that the vehicle had been stopped because it fit a police radio description of a vehicle which had been involved in a shooting incident. Although the driver of the vehicle testified that defendant did not know about the gun, there was more than sufficient evidence from which the court could have inferred that defendant possessed the requisite knowledge. People v Moceri, 294 Mich 483; 293 NW 727 (1940). Defendant’s subsequent jury acquittal of the charged offense is irrelevant as the standard of proof was not the same.

Defendant’s contention that hearsay testimony was improperly considered at the hearing is without merit. In Michigan, revocation hearings are "summary and informal and not subject to the rules of evidence * * * applicable in criminal trials”. MCL 771.4; MSA 28.1134. Also, see Morrissey v Brewer, supra, 489.

We conclude that the lower court did not err in revoking defendant’s probation.

Lastly, defendant contends that the imposition of a flat five-year sentence violates the provisions of the indeterminate sentencing act, MCL 769.8; MSA 28.1080, and the holding by the Supreme Court in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972). We agree.

There exists a split of authority on this Court as to whether Tanner applies where, as in the instant case, a defendant previously convicted of crime is not charged as a habitual offender. Compare, People v Redwine, 73 Mich App 83; 250 NW2d 550 (1976), People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977), People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), People v Reese, 83 Mich App 186; 268 NW2d 340 (1978), with People v Banks, 73 Mich App 492; 252 NW2d 501 (1977), People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978), People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978).

The Supreme Court has applied the Tanner rule, without discussion, to cases in which the defendant had committed prior felonies. See, e.g., People v Haggitt, 388 Mich 377; 200 NW2d 321, and People v Jordan, 388 Mich 773; 200 NW2d 321 (1972) .

In our opinion, the better view is that expressed in Redwine and its progeny.

MCL 769.13; MSA 28.1085 provides for the filing of supplemental informations by the prosecutor charging previous convictions. The filing of an information under the habitual criminal act by the prosecutor is discretionary. People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968). Prosecution as a habitual criminal may be instituted either in the first instance as a repeated offense, or by supplemental information following conviction of the second or subsequent offense.

Successful prosecution under the habitual criminal statute is necessary before the maximum sentence may be lengthened. Complex factual or legal arguments concerning the validity of the prior convictions could be relevant considerations. People v Bonner, 49 Mich App 153; 211 NW2d 542 (1973) . The previous conviction must be set forth in detail in the initial or supplemental information and the prosecutor must prove the accused’s identity as related to the former conviction. In re Brazel, 293 Mich 632; 292 NW 664 (1940).

As a panel of this Court recently said in People v Reese, supra at 189-190:

"The sentencing scheme is set out in Chapter IX of the Code of Criminal Procedure, MCL 769.1 et seq.; MSA 28.1072, et seq. Section 8, the provision in question here, applies to those 'convicted for the first time’. Sections 10, ll and 12, the habitual offender provisions, apply to defendant’s second and subsequent convictions. However, before the habitual offender penalties may be imposed, a defendant is entitled to the hearing and notice protections of § 13. To remove, a defendant from the benefits of the indeterminate sentencing provision without charging him in a supplemental information as a habitual offender is both unwise and unfair.
"The Legislature has created but two types of sentences — indeterminate and habitual — and, unless he is charged as a habitual offender, he must be sentenced as if he were 'convicted for the first time’. That this is the legislative intent can be seen from the final phrase of § l: ' * * * such sentence shall in no case or respect be greater than the penalty * * * prescribed * * * by law’. The people point to no statute authorizing the flat five year sentence as imposed here, without complying with the habitual offender provisions, and we have found none. Defendant must be sentenced under § 8 as interpreted by the Supreme Court in People v Tanner. ”

Since no one may be made to suffer the sentencing consequences resulting from second or third or fourth felony convictions without the filing of an information to that effect, it appears to this panel that the Legislature intended a criminal defendant to have the benefit of the indeterminate sentencing act, even in light of prior felony convictions, unless the prosecutor elects to charge the defendant as a repeat offender.

The lower court is affirmed with the sentence modified to 3-1/3 to 5 years.

       On September 15, 1976, pursuant to the request of defendant’s probation officer, the lower court extended defendant’s term of probation for one year, or until court costs were paid in full. The extension had been recommended because, although defendant’s behavior had been exemplary, he had only paid $20 of the $104 assessed against him. At the time of the probation hearing, defendant had not paid the costs, nor had he alleged any inability to pay. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975).
      Apparently, the court was not informed of defendant’s April 19, 1976, arrest at the time it extended the probation. The probation officer’s written request for the extension, upon which the court’s order was based, stated that the defendant had not had any further law violations.

       MCL 769.8; MSA 28.1080.

       MCL 769.10; MSA 28.1082.

         MCL 769.11; MSA 28.1083.

       MCL 769.12; MSA 28.1084.

       MCL 769.13; MSA 28.1085.

       MCL 769.1; MSA 28.1072.


author: Beasley, J.

text:
    ARKIN DISTRIBUTING COMPANY v THE AMERICAN INSURANCE COMPANY
    Docket No. 77-3679.
    Submitted June 15, 1978, at Detroit.
    Decided August 22, 1978.
    Leave to appeal applied for.
    Arkin Distributing Company, Arkin A-OK Sales Corporation and Arkin A-OK Products Company, corporations whose president is Irwin Arkin, were insured against fire loss by The American Insurance Company. A fire occurred at the place of business, and when the parties were unable to agree on the amount of loss, Arkin appointed an appraiser and demanded an appraisal pursuant to the policy provisions. American neglected to proceed with appraisal, and Arkin and the corporations brought an action against American requesting the court to appoint an umpire and require American to proceed with the appraisal. An umpire was appointed, an appraisal was made, and the plaintiffs moved for summary judgment on the appraisal award. The Oakland Circuit Court, James S. Thorburn, J., entered a judgment confirming the award and granting interest from 30 days after the date of the fire. Defendant insurer appeals, alleging that the appraisal award was not sufficiently itemized, that the court erroneously denied the defendant a determination of an alleged under-reporting penalty, and that the interest should run only from the date of filing of the complaint. Held:

    1. The appraisal award used the same categories of losses as those contained in the insurance policy for determining the amount of premium, and on the facts of this case this was a sufficient itemization of the losses.
    2. The trial court properly ruled that the defendant had waived its right to exact the under-reporting penalty by failing to raise the issue before the court either during the appraisal proceeding or before the final appraisal award was rendered and plaintiffs had moved for judgment on the award.

      References for Points in Headnotes
    [1] 44 Am Jur 2d, Insurance §§ 1707, 1719, 1720.
    Insurance necessity and sufficiency of notice of and hearing in proceedings before appraisers and arbitrators appointed to determine amount of loss. 25 ALR3d 680.
    [2] 44 Am Jur 2d, Insurance § 1906.
    [3] 44 Am Jur 2d, Insurance § 1719.
    [4] 44 Am Jur 2d, Insurance §§ 1654,1655.

      3. The award of interest starting 30 days after the fire was erroneous. Interest is controlled by the statute providing for interest on a money judgment from the date of filing the complaint.
    Affirmed in part, reversed in part.
    1. Insurance — Fire Insurance — Appraisal of Loss — Itemization of Appraisal Award.
    An umpire in a fire insurance appraisal dispute sufficiently itemized the elements of the loss where the appraisal award was presented after extensive hearings and where the award used the same catagories as those contained in the policy of insurance for setting the amount of premium.
    2. Insurance — Fire Insurance — Under-Reporting Penalty— Waiver — Appeal and Error.
    A trial court did not err in ruling that an insurer had waived its right to exact an under-reporting penalty against an insured who had suffered a fire loss where, upon learning of the possibility of its claim to the penalty and knowing that the appraisal award would not be sufficiently itemized to calculate the penalty, the insurer failed to move the trial court for an order directing the umpire to so itemize the award until after the appraisal was complete, the award was rendered and the insured had moved for judgment on the award; the lack of timely presentation of the issue to the trial court also precludes appeal on the issue.
    3. Insurance — Appraisal Award — Impeachment of Award.
    An appraisal award in an insurance loss case may be impeached for improper conduct or unfair means employed by the successful party.
    4. Interest — Interest on Judgment — Pre-Complaint Interest— Statutes.
    A trial court erred in awarding interest on a judgment to an insured based upon a statute requiring losses under fire insurance policies to be paid within 30 days; the statute which controls, where the insurance policy does not expressly provide for interest, is the statute specifically dealing with interest on a money judgment, which provides that interest is payable from the date of filing the complaint (MCL 500.2836[2], 600.6013; MSA 24.12836[2], 27A.6013).

      Barris, Sott, Denn & Driker (by Donald E. Barris and Stephen E. Glazek), for plaintiffs.

      Denenberg, TufBey & Thorpe, for defendant.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Beasley, J.

Plaintiffs-appellees are engaged in the wholesale sale and distribution of children’s toys, pet supplies and various related products normally sold in supermarkets. On August 28, 1976, a fire occurred at plaintiffs’ place of business causing substantial damage to the building, inventory, furniture, fixtures and equipment, and causing an interruption in plaintiffs’ business.

At the date of the fire, defendant-appellant insured plaintiffs against loss due to fire and other covered perils under a Michigan standard fire insurance policy. When the parties were unable to agree on the dollar amount of loss, on October 28, 1976, plaintiffs advised defendant they had appointed an appraiser and demanded an appraisal pursuant to the fire insurance policy.

Defendant neglected to appoint an appraiser and to proceed with an appraisal, apparently claiming they were still counting and inventorying the damage.

Since defendant had neither made payment nor proceeded with appraisal, plaintiffs started this proceeding requesting appointment of an umpire and requiring defendant to proceed with the appraisal required under the insurance policy.

After oral argument, on January 5, 1977, the trial judge ruled from the bench:

"THE COURT: The Court is of this opinion: First, that it has taken too long to determine whether the loss is going to be paid or what the figure is that will be paid. The whole purpose of the policy and the reason that a fire insurance company is licensed is to grease the wheels of commerce so when there is a loss that commerce will continue. So the Court is of the opinion that it is not a premature request, and makes that as a finding based on the pleadings.”

He then granted the request for an appraisal and appointed an umpire.

After meetings to establish a procedure, seven full days of hearings were held at the loss site. Both sides offered proofs, the umpire hearing 28 witnesses, considering various expert reports and details.

On July 26, 1977, the umpire and the two appraisers met. The umpire and plaintiffs’ appraiser made what was described as a "Partial Appraisal Award” as follows:

"This is to certify that we, the undersigned umpire and appraisers, have carefully examined the evidence at 43100 Nine Mile Rd., Novi, Michigan, resulting from the fire of August 28, 1976, in accordance with our appointment as umpire and appraisers, and have determined the actual cash value and loss and damage relative to the building and contents as follows:
Value Loss
Building $1,000,000.00 $171,000.00
Contents — Stock 1,149,000.00 610,000.00
Contents — Furniture, Fixtures, Machinery and Equipment 120,000.00 31,000.00”
"This award, determined and executed this 26 day of July, 1977, at Southfield, Michigan.”

The document was signed by the umpire and the plaintiffs’ appraiser.

After plaintiffs filed a motion for partial summary judgment, defendant filed an answer and each filed briefs and made oral argument on August 19, 1977. The trial court awarded judgment of $812,000, confirming the award and fixing interest at five percent starting 30 days after the fire and at six percent from the date of filing the complaint. Credit was given for advance payment.

Defendant appeals as of right, claiming four bases for reversal.

Appellant first attacks denial by the trial court of its motion to set aside or modify the appraisal. Appellant claims that its appraiser requested the umpire to "itemize” the appraisal award by furnishing a separate appraisal of each item in dispute and that refusal by the umpire to do so was in violation of the court’s order appointing him.

The court’s order stated that appointment was made pursuant to the appraisal provision of the insurance policy and that the loss should be appraised pursuant to the insurance policy provisions.

Appellee argues that the only "itemization” required by the insurance policy is according to the various items of coverage indicated in the insurance policy.

The insurance policy provided:

"The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss.”

The appraisal panel used the same categories as are contained in the policy for setting the amount of premium, as follows:

Value Loss
Building $1,000,000.00 $171,000.00
Contents — Stock 1,149,000.00 610,000.00
Contents — Furniture, Fixtures, Machinery and Equipment 120,000.00 31,000.00”

The word "item” is not defined in the insurance policy. The cases appear to support appellees’ position.

In Phoenix Assurance, for instance, the plaintiff insurer brought a declaratory judgment action to establish the invalidity of an arbitration award of $38,500 made upon a fire loss at the home of defendant, and to fix the amount of plaintiff’s liability on its policy for such loss. The award was approved by the trial court, which also assessed a penalty for vexatious delay and awarded attorneys’ fees. Plaintiff appealed, claiming as one ground for reversal that the award was invalid because it was not properly itemized.

The appellate court rejected plaintiff’s claim, and stated:

"We agree with Judge Meredith that the award made upon the form provided by the plaintiff complies with the policy provisions and with the arbitration agreement signed by the parties which requires separately showing actual cash value and loss on each item. We agree that the word 'item’ refers to items as listed in the policy and not to a detailed specification of all of the minute elements of damage giving rise to the total damage with respect to each item listed on the policy.”

In Commercial Union Ins Co, the court was faced with a similar issue and quoted Phoenix Assurance with approval in holding that where insurance policy coverage provisions refer to a "building” it is not necessary to separately appraise the actual cash value of each component part of the building. The Andrews case also involved fire loss to a building. Again, the court held that it was not necessary to divide the building into its component parts for appraisal purposes.

The form of appraisement of loss was also brought under attack in the McQuaid case. In answering appellants’ objections in that case, the court stated:

"It is well settled, in the absence of statute otherwise providing, that in the common-law arbitration the arbitrators need not specify in detail the facts made the basis of their decision, but may report the result of their deliberations in the form of general conclusions, which determine the points involved, together with a statement of the gross allowance made.”

In Davis v National American Ins Co, this Court held that an insurance policy provision similar to the subject appraisal provision constituted a common law arbitration agreement.

Appellant in the instant case contends that the above-cited building cases are inapplicable to the itemization issue here involved in that they "merely reiterate the principle that buildings cannot be appraised by breaking the structure into its component parts”. Appellant further asserts:

"It should be noted that the Defendant-Appellant did not request the umpire to list the value of and amount of loss to each of the thousands of toys involved in the loss. What its appraiser did request was an itemization of the major disputed areas of the building loss and a breakdown and brief explanation of the contents loss so that it could determine whether or not there were improper calculations or duplications and so that it could determine the amount of the reporting-penalty as hereinafter discussed.”
"Although this precise issue has not been decided in Michigan, courts in other jurisdictions have held that an umpire’s failure to itemize voids the award.”

The cases cited by appellant do not support appellant’s conclusion. We also decline to limit the holding of the building cases as suggested by appellant.

On the record before us, we decline to find error in the method and form utilized by the umpire. Following an apparently painstaking process of investigation, as evidenced by seven full days of hearings at the loss site and the taking of testimony of some 28 witnesses, including various expert reports and details, an appraisal award was presented. The award used the same categories as those contained in the policy of insurance. We hold that no further itemization was necessary. In fact, appellant’s disagreement seems to be more with the figure reached by the umpire than with the method utilized by the umpire in reaching that figure.

Second, appellant claims the trial court erred in denying it determination of an alleged "under-reporting” penalty. As a basis for ruling, the trial court found that defendant waived its right to assert the under-reporting penalty by failing to raise the issue before the court earlier. The record indicates that defendant did not raise any question concerning alleged under-reporting during the two years before the fire. Furthermore, defendant did not raise the issue of an under-reporting penalty during the appraisal proceeding nor before the final appraisal award was rendered and plaintiffs had moved for judgment on it.

Defendant claimed that the provisions of the insurance policy relating to an under-reporting penalty constitute an additional reason to require "itemizing” of the appraisal award. It is defendant’s position that defendant was not able to raise the question of an under-reporting penalty unless and until an itemized appraisal award was made showing the individual items concerning which an under-reporting issue might be raised. We believe that, in order for defendant to raise this issue on appeal, it was incumbent upon defendant to timely present this legal issue to the trial court by moving for an order directing the umpire to so itemize the award. In Thermo-Plastics R & D, Inc v General Accident Fire & Life Assurance Corp, Ltd, 42 Mich App 418, 422; 202 NW2d 703 (1972), this Court said:

"The appraisal procedure as a substitute for judicial determination of a dispute concerning the amount of a loss is legislatively prescribed in the standard fire insuranee policy, the terms of which are mandatory under the Michigan Insurance Code. The Michigan Supreme Court has described this appraisal procedure as 'a simple and inexpensive method for the prompt adjustment and settlement of claims’.” (Footnotes omitted.)

Dilatoriness on the part of the insurer defeats the purpose of the appraisal clause and often causes extreme hardship to the insured. See, Shapiro v Patrons’ Mutual Fire Ins Co, 219 Mich 581; 189 NW 202 (1922). Here, it is apparent that defendant learned during the appraisal proceeding that it might have an arguable claim to an under-reporting penalty, and, thus, knew or could have easily learned that the award would not be sufficiently itemized to allow calculation of the penalty. Yet, with such knowledge, defendant did not promptly move the trial court for an appropriate order, but rather waited until the appraisal was complete, the award was rendered and plaintiffs had moved for judgment on the award. On these facts, we do not believe that the trial court erred in ruling that defendant had waived its right to exact the penalty by failing to timely raise the issue.

Appellant next contends that plaintiffs’ counsel and appraiser wrongfully attempted to influence the umpire, thereby requiring the award be vacated. An award may be impeached for improper conduct or unfair means employed by the successful party. A review of the record convinces us that no such grounds for impeachment lie in the instant case. We decline to hold that the conduct complained of by appellant requires that the award be vacated.

Finally, appellant contends that the trial court erred in awarding appellees pre-complaint interest.

MCL 500.2836(2); MSA 24.12836(2) provides:

"All losses under any fire insurance policy shall be paid within 30 days, the provisions of any contract or statute to the contrary notwithstanding.”

Based on that provision, the trial court ordered the payment of interest to plaintiffs commencing at a time 30 days after the date of the loss and running to the date of the filing of plaintiffs’ complaint. In so doing, the court found that the provision above-quoted superseded the provision of MCL 500.2832; MSA 24.12832, which states in pertinent part:

"The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.”

An additional pertinent statutory provision is found in MCL 600.6013; MSA 27A.6013, which states in part:

"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year * * * .”

In deciding a somewhat related issue in Linford Lounge, Inc v Michigan Basic Property Ins Ass’n, 77 Mich App 710, 713-714; 259 NW2d 201 (1977), this Court stated:

"Defendant also contends that the trial court erred in awarding plaintiff interest on the judgment from the date of filing the complaint as provided by MCLA 600.6013; MSA 27A.6013. Defendant argues that as the statutory policy provides that the loss is payable 60 days after an appraisal award, the court is not required to award interest on the judgment from the date of filing the complaint, but only from 60 days after the award.
"The standard policy does not specify the date from which interest on a judgment is payable. MCLA 600.6013; MSA 27A.6013, however, specifically states that interest shall be paid on a money judgment in any civil action from the date of filing the complaint. Obviously, a specific statute providing for interest controls a more general statute which specifies only when a loss is payable.
"This Court has held that MCLA 600.6013; MSA 27A.6013 controls an award of interest on a money judgment in a civil action, even though there is an express provision in the insurance policy providing for interest from the date of the judgment. Cates v Moyses, 57 Mich App 405; 226 NW2d 106 (1975), Cosby v Pool, 36 Mich App 571; 194 NW2d 142 (1971). A fortiori, MCLA 600.6013; MSA 27A.6013 should control the interest award in the instant case where the insurance policy does not expressly provide for interest.”

We hold that Linford Lounge, Inc is controlling in the instant case and that the trial court erred in granting pre-complaint interest to plaintiffs. That portion of the trial court’s judgment granting precomplaint interest to plaintiffs is vacated. The remainder is affirmed.

Affirmed in part; reversed in part.

       Defendant made an advance payment of $400,000 on February 23, 1977, and a payment subsequent to the September 6, 1977, judgment of $168,000.

       MCL 500.2832; MSA 24.12832, lines 132-137.

         Commercial Union Ins Co v Ryals, 355 So 2d 684 (Ala, 1978), Phoenix Assurance Co of New York v Singer, 221 F Supp 890 (ED Mo 1963), aff'd 331 F2d 10 (CA8, 1964), Andrews v Empire Co-Operative Fire Ins Co, 197 Misc 387; 87 NYS2d 629 (1949), rev’d, 276 App Div 447; 95 NYS2d 514 (1950) (on grounds that there was no "meeting of minds” as to what the loss was), McQuaid Market House Co v Home Ins Co 147 Minn 254; 180 NW 97 (1920).

         331 F2d at 12.

       355 So 2d at 687.

       147 Minn at 257; 180 NW at 98.

       78 Mich App 225; 259 NW2d 433 (1977).

       Appellant cites Palma v Watson Surplus Lines Agency, 148 Cal App 2d 879; 307 P2d 689 (1957), Mizrahi v National Ben Franklin Fire Ins Co, 37 NYS2d 698 (1942), Schmitt Bros v Boston Ins Co, 82 App Div 234; 81 NYS 767 (1903), Coffin v German Fire Ins Co, 142 Mo App 295; 126 SW 253 (1910), and Riddell v Rochester German Ins Co, 36 RI 240; 89 A 833 (1914). A careful review of the cases cited convinces us that none of them is controlling authority in the instant case.

       14 Couch on Insurance 2d, § 50:274, pp 490-491.