author: N. J. Kaufman, J.

text:
    PEOPLE v THOMAS
    Docket No. 78-615.
    Submitted December 8, 1978, at Detroit.
    Decided February 6, 1979.
    Johnny E. Thomas was convicted, on his plea of nolo contendere, of breaking and entering with intent to commit larceny, felonious assault and possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, Joseph E. Maher, J. He received a separate sentence on each charge. Defendant appeals alleging that the trial court did not correctly inform him of the charges against him at the proceeding for the acceptance of his plea. Held:

    The trial court properly accepted defendant’s plea on the offense of breaking and entering but failed to personally state to the defendant that he was charged with felonious assault and possession of a firearm during a felony or to ask defendant how he pled to these offenses as required by court rule; a defendant cannot plead to or be sentenced for a crime with which he was not charged.
    The conviction and sentence for breaking and entering is affirmed but the convictions and sentences for assault and felony firearm are set aside and the case is remanded.
    1. Criminal Law — Plea op Guilty — Nolo Contendere — Name of Offense — Sentences — Court Rules.
    Prior to the acceptance of a plea of guilty or nolo contendere, the court is required to personally state to a defendant the name of the offense to which he is pleading and ask the defendant how he wishes to plead to the offense; a defendant cannot plead to or be sentenced for a crime that he is not charged with (GCR 1963, 785.7[1], 785.7[5]).
    2. Criminal Law — Plea of Guilty — Conviction and Sentencing — Prejudice.
    Conviction and sentencing of a defendant on charges to which he has not pled or of which he has not been found guilty after trial is prejudicial,

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 458, 460, 461, 487, 491, 497.

       21 Am Jur 2d, Criminal Law §§ 484-502.

      3. Criminal Law — Plea of Guilty — Nolo Contendere — Plea Bargains — Sentences — Court Rules.
    A court rule requires a court, before accepting a plea of guilty or nolo contendere, to ask the prosecutor and the defendant’s lawyer whether they have made a plea agreement; failure to mention a plea agreement at a prior plea hearing precludes consideration of any such agreement at a later sentencing (GCR 1963, 785.7[2]).

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

      Raymond L. Miller, for defendant.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

This case from beginning to end is a comedy of errors.

The request for a warrant was for the following offenses: (1) breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305; (2) felonious assault, MCL 750.82; MSA 28.277; (3) possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2).

A preliminary examination was held on November 4, 1977. Defendant was bound over for trial on the above three charges. An information was filed on the same date.

Defendant then filed a motion requesting a forensic evaluation under MCL 330.2026, 330.2028; MSA 14.800(1026), 14.800(1028), Following the evaluation, the court found defendant competent to stand trial.

A plea hearing was then held on November 28, 1977. There was no plea bargaining. The court accepted defendant’s proffered reason for pleading nolo contendere: that defendant was unable to totally recall the events of the crimes with which he was charged.

The following colloquy then occurred:

"THE COURT: And how do you plead to this offense breaking and entering with intent to commit larceny carrying a concealed pistol on your person, assault with intent to do great bodily harm less than murder—I have to correct this. There is no charge of carrying a concealed weapon—strike that.
"MR THOMAS: No contest.
"THE COURT: You plead no contest?
"MR THOMAS: Yes.” (Emphasis supplied.)

The court then proceded to advise defendant of some of his rights pursuant to GCR 1963, 785.7. However, at no time did the court personally state to the defendant that he was charged with felonious assault and possession of a firearm during a felony, or ask the defendant how he pled to these offenses. GCR 1963, 785.7(l)(a), 785.7(5); Guilty Plea Cases, 395 Mich 96, 115-117; 235 NW2d 132 (1975). It is clear that defendant was prejudiced by these omissions. Conviction and sentencing on charges to which one has not pled or of which one has not been found guilty after trial is a rather obvious form of prejudice.

Defendant was sentenced on December 13, 1977. Under the felony firearm statute, defendant received a mandatory sentence of two years imprisonment, to be served first. The court also sentenced defendant to 3 to 15 years for breaking and entering, and 3 to 10 years for assault with intent to do great bodily harm less than murder. The two latter sentences were to run concurrently. Also at the sentencing the following occurred:

"* * * [Defense counsel, who was the same counsel at the preliminary examination, the hearing on the forensic examination, the plea and the sentencing]: And the only other agreement, that the Prosecutor’s Office will not supplement him.
"Is that correct, * * *?”
"* * * [Assistant Prosecutor]: Yes, Your Honor. The People will not file a Supplemental Information charging the defendant as a Habitual Criminal as a result of this plea. But that does not apply to any felony he may commit or attempt to commit in the future, Your Honor.
"THE COURT: Yes.”

There was no such agreement mentioned at the plea hearing, as required by GCR 1963, 785.7(2).

Defendant appeals as of right. Not surprisingly, defendant claims that the trial court did not correctly inform him of the actual charges. We agree, with the exception of the charge of breaking and entering an occupied dwelling with intent to commit a larceny, MCL 750.110.

We realize that the Detroit Recorder’s Court is one of the busiest criminal courts in the United States; however, there is no excuse for what happened in this case. Defendant pled to and was sentenced for a crime that he was not charged with. While the file does show that on December 16, 1977, an amended Count II sentence of 32 months to 4 years was entered for felonious assault, defendant never pled to that charge. Nor did he plead to possession of a firearm in the commission of a felony.

Therefore, this Court sets aside the assault and felony firearm convictions and affirms the conviction and sentence for breaking and entering. The cause is remanded to the trial court for further proceedings consistent with this opinion. In light of our disposition, we need not reach defendant’s two remaining claims of error.

       William Shakespeare, The Comedy of Errors.

         Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975), People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977).


source: Caselaw Access Project

author: Cynar, P.J.

license: Public Domain

text:
    PEOPLE v TAVOLACCI
    Docket No. 78-1177.
    Submitted November 14, 1978, at Lansing.
    Decided February 6, 1979.
    Timothy R. Tavolacci was convicted, on his plea of guilty, of assault with intent to do great bodily harm less than murder and possession of a firearm during the commission or attempt to commit a felony in the Livingston Circuit Court, Bert M. Hensick, J. Defendant appeals claiming conviction of the two crimes constitutes double jeopardy, that the felony-firearm statute involves amendment of a statute without republication in violation of the constitution, and that there is an insufficient factual basis to support his guilty plea to possession of a firearm during the course of a felony. Held:

    1. A defendant who is found to have committed a felony and then found guilty of possession of a firearm during the commission of that felony is not thereby subjected to double jeopardy.
    2. The felony-firearm statute does not violate the constitutional prohibition against revision of a statute by reference to its title only.
    3. One not in possession of a firearm may be punished as an aider and abettor to a felony-firearm offense.
    4. An aider and abettor need not be present at the scene of the crime as long as the evidence shows he procured, counseled, aided or abetted in its commission.
    5. The evidence is sufficient to give rise to the inculpatory inference that defendant knew his confederates were armed with a firearm.
    6. The evidence is sufficient to provide a factual basis for defendant’s conviction as an aider and abettor to possession of a firearm during the course of a felony.
    Affirmed.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 182 et seq.

    79 Am Jur 2d, Weapons and Firearms §§ 7, 8.

       73 Am Jur 2d, Statutes § 137.
    79 Am Jur 2d, Weapons and Firearms § 5.

       21 Am Jur 2d, Criminal Law §§ 119, 127, 128.

      1. Criminal Law — Constitutional Law — Felony-Firearm — Double Jeopardy — Statutes.
    A defendant who is found to have committed a felony not . excluded from the scope of the felony-firearm statute and then found guilty of possession of a firearm during the commission of that felony is not thereby subjected to double jeopardy (MCL 750.227b; MSA 28.424[2]).
    2. Constitutional Law — Criminal Law •— Felony-Firearm — Title-Object Clause — Statutes.
    The felony-firearm statute is an act complete within itself, and as such it does not violate the constitutional proscription against revision of a statute by reference to its title only (Const 1963, art 4, § 25, MCL 750.227b; MSA 28.424[2]).
    3. Criminal Law — Aiding and Abetting — Felony-Firearm — Possession of Firearm — Statutes.
    One not in possession of a firearm may be punished as an aider and abettor to a felony-firearm offense since: 1) the purpose of the aider and abettor statute is to punish those who had counseled, aided or abetted in the commission of an offense in the same manner as if they had actually committed the offense and such purpose is furthered by applying the statute to one who aids and abets the possession of a firearm in the course of a felony, 2) the aider and abettor statute applies to all offenses and is not limited in any way, 3) there is no indication that the Legislature intended to exclude the possibility of an aider and abettor to the crime of possession of a firearm during the course of a felony since it specifically excluded some other crimes from the scope of the statute, and 4) punishing aiders and abettors of the crime of felony-firearm is consistent with and would help to further the felony-firearm statute’s purpose of deterring the use of handguns during the course of felonies (MCL 750.227b, 767.39; MSA 28.424[2], 28.979).
    4. Criminal Law — Aiding and Abetting.
    An aider and abettor is one who encourages, counsels or assists in the commission of a crime with the intention of rendering such help and with the knowledge that the criminal act is contemplated; an aider and abettor need not be present at the scene of the crime as long as the evidence shows he procured, counseled, aided or abetted in the commission of the offense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank R. Del Vero, Prosecuting Attorney (by Keith D. Roberts,
      Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      J. David Reck, for defendant.
    Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   Cynar, P.J.

Defendant appeals as of right from guilty pleas entered on November 22, 1977. On that date, pursuant to a plea bargain, defendant pled guilty to assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm during the commission or attempt to commit a felony, MCL 750.227b; MSA 28.424(2). On December 27, 1977, he was sentenced to consecutive terms of 2 years imprisonment for the felony-firearm charge and 4 to 10 years for the assault.

We find no merit to defendant’s argument that conviction of the two crimes constitutes double jeopardy. See People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978), and People v Dillon, 87 Mich App 579; 275 NW2d 28 (1978).

Similarly, we reject defendant’s argument that the felony-firearm statute, MCL 750.227b; MSA 28.424(2), involves amendment without republication, in violation of Const 1963, art 4, § 25. See People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978).

Defendant’s final contention is that there is an insufficient factual basis to support his guilty plea to possession of a firearm during the course of a felony. The prosecutor contends that the facts provided by defendant at the plea proceeding provide an adequate basis for a conviction as an aider and abettor.

At the plea proceeding defendant testified that he was a party to a plan to kill an undercover narcotics agent. As part of this plan he told the undercover agent of a drug buy that was arranged for him. The agent then appeared pursuant to defendant’s instructions and was introduced to two other persons who were supposedly involved in the drug sale. In reality these individuals had armed themselves with a shotgun which they intended to use to kill the agent. Defendant testified that he knew a "weapon” was going to be used, but didn’t know it would be a shotgun. The agent left in a car with the other two individuals. Shortly thereafter, an unsuccessful attempt upon the agent’s life was made. Defendant was not present at the time of this assault, nor was he ever in actual possession of the firearm.

Defendant initially contends that a conviction under MCL 750.227b; MSA 28.424(2) is limited to the person who actually possesses the firearm. Such a view has been accepted, over a dissent, by one panel of this Court. See People v Walter Johnson, supra.

However, we believe that the felony-firearm statute should not be interpreted in such a limited manner. MCL 767.39; MSA 28.979 provides that:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”

We see no reason why one not in possession of a firearm cannot be punished as an aider and abettor. The purpose of the aider and abettor statute is to punish those who had counseled, aided or abetted in the commission of an offense in the same manner as if they had actually committed the offense. People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974). Such a purpose is furthered by applying the statute to one who aides and abets the possession of a firearm in the course of a felony.

We also note that the aider and abettor statute is not limited in any way. It applies to all "offenses”, including misdemeanors. People v Hoaglin, 262 Mich 162, 172; 247 NW 141 (1933). It has also been applied to a possessory crime, similar to that present here. In People v Doemer, 35 Mich App 149, 151-152; 192 NW2d 330 (1971), the Court held that one could aid and abet the possession of marijuana. See also 47 ALR3d 1239.

Nor do we see anything in the language of MCL 750.227b; MSA 28.424(2) that indicates a legislative intent to exclude the possibility of an aider and abettor to the crime described therein. The language of the statute applies to "A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a * * *» There are innumerable imaginable situations where one could act in such a way so as to aid and abet such possession. If the Legislature had wished to exclude such aiders and abettors from the punishment set forth in the statute, it could have done so in a manner similar to that which it used to exclude two felonies from the scope of the statute.

Furthermore, punishing aiders and abettors of the crime of "felony-firearm” is consistent with and would help to further the felony-firearm statue’s purpose of deterring the use of handguns during the course of felonies. See People v Elowe, 85 Mich App 744; 272 NW2d 596 (1978). Punishment of those who aid or abet this crime serves as a deterrence to such aiding and abetting. Consequently less persons would be likely to act as aiders and abettors. This reduction serves as additional deterrence upon the commission of the crime as well, as there are likely to be persons who are unable or unwilling to commit the offense of "felony-firearm” without some assistance.

In light of the considerations noted above, we hold that one may be convicted as an aider and abettor to the felony-firearm offense. In so doing we note with approval that part of Judge N. J. Kaufman’s dissenting opinion in People v Walter Johnson which comes to the same conclusion by means of a different analysis.

The question still remains whether defendant supplied a sufficient factual basis for the felony-firearm plea. An aider and abettor is one who:

"encourages, counsels or assists another in the commission of a crime with the intention of rendering such help and with the knowledge that the criminal act is contemplated.” People v Gary Spry, 74 Mich App 584, 594; 254 NW2d 782 (1977). See also People v Penn, 70 Mich App 638, 649; 247 NW2d 575 (1976).

One accused as an aider and abettor need not be present at the scene of the crime, as long as the evidence shows he procured, counseled, aided or abetted in the commission of the offense. People v Hodo, 51 Mich App 628, 635; 215 NW2d 733 (1974).

In the present case, defendant admitted taking part in a plan to kill the undercover agent. He knew at the time that the others intended to kill the agent. Defendant also admitted he knew that the other individuals involved in the plot would be armed with a "weapon”. This evidence is sufficient to give rise to the inculpatory inference that defendant knew his confederates were armed with a firearm. See People v Haack, 396 Mich 367, 377; 240 NW2d 704 (1976).

We conclude that this evidence is sufficient to provide a factual basis for defendant’s conviction as an aider and abettor to "felony-firearm”. Defendant’s participation in the plot to murder the agent is sufficient assistance and encouragement in the commission of the crime to constitute "aiding and abetting”. Although defendant did not provide the weapon to be used, his assent to and participation in the plan were necessary to the ultimate commission of "felony-firearm” by the other participants in the plan. Such encouragement was made intentionally and with the knowledge that the crime of "felony-firearm” was contemplated.

Affirmed.


author: Cynar, J.

text:
    PEOPLE v SULLIVAN
    Docket No. 78-1328.
    Submitted December 6, 1978, at Lansing.
    Decided February 6, 1979.
    Leave to appeal applied for.
    Leslie H. Sullivan was charged in separate informations with larceny over $100 and assault with intent to do great bodily harm less than murder. The prosecution moved for the consolidation of the two charges at a single trial, arguing that both charges arose out of the same transaction. This motion was opposed by defense counsel. The trial court denied the motion on the ground that it was untimely and because the offenses did not arise out of the same transaction. The defendant was tried on the larceny charge and was acquitted.
    Subsequently, the defendant moved to dismiss the assault charge, claiming that any prosecution on that charge after trial on the larceny charge violated his double jeopardy rights. The Jackson Circuit Court, Russell E. Noble, J., granted the defendant’s motion and dismissed the assault charge on the ground that the two charges should have been joined in one proceeding. The people appeal. Held:

    The prosecution made a good faith effort to protect the defendant’s rights and, under the circumstances of the case, the prosecution on the assault charge is not barred by the same transaction test.
    Reversed and remanded.
    1. Criminal Law — Same Transaction Test.
    The same transaction test requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction.
    2. Criminal Law — Same Transaction Test.
    A basic reason for adopting the same transaction test which requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction is to prevent harassment of a defendant.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 8, 9, 189.

       21 Am Jur 2d, Criminal Law § 188.

      3. Criminal Law — Same Transaction Test — Assault — Larceny — Opposition by Defense Counsel.
    The same transaction test which requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction should not be used to bar the prosecution of a defendant on an assault charge, arising out of the same transaction which gave rise to a charge of larceny of which the defendant was acquitted at an earlier trial, where the prosecution made every effort to protect the defendant’s right against double jeopardy by having the charges joined but was thwarted by the arguments of defense counsel.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Thomas K Ellis, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and D. E. Holbrook and Cynar, JJ.
   Cynar, J.

The prosecution appeals as of right from a March 31, 1978, circuit court order dismissing a charge of assault with intent to do great bodily harm less than murder, MCL 750.85; MSA 28.279. The charge was dismissed because it was not joined and tried with a charge of larceny over $100, MCL 750.356; MSA 28.588, which allegedly arose out of the same transaction.

The offenses in question allegedly took place on October 25, 1977, and were charged in separate informations. On November 10, 1977, defendant waived preliminary examination on the assault charge. A preliminary examination was held on the larceny charge on November 14, 1977. At this proceeding the complainant testified that defendant, her husband, returned from work on October 25, 1977, and found some money missing from a safe in his house. Believing that his wife took the money, he beat her for several hours until she told him that there was money at her son’s house. They went to the son’s house, took the money and returned home, where she was beaten again.

The assault charge was scheduled for trial on January 30, 1978. On motion by defense counsel, the trial date was adjourned until April 24, 1978. On March 6, 1978, defendant filed notice of an insanity defense to this charge.

Trial on the larceny charge was scheduled for March 13, 1978. On the morning of trial, the prosecutor moved for the consolidation at a single trial of the two charges. This motion was opposed by defense counsel. The trial judge denied the motion to consolidate on the ground that it was not timely made and because the offenses did not arise out of the same transaction. Defendant was then tried and acquitted of the larceny charge.

On March 31, 1978, defendant moved to dismiss the assault charge, claiming that any prosecution brought on that charge after trial on the larceny charge violated his double jeopardy rights. This motion was heard by a different judge than the one who had heard the motion to consolidate and was granted on the ground that the two charges should have been joined at one proceeding.

In People v White, 390 Mich 245, 255; 212 NW2d 222 (1973), the Michigan Supreme Court adopted the "same transaction test” to protect a defendant’s double jeopardy right against multiple prosecutions. Such a rule requires the prosecution to join at one trial all the charges against a defendant that grow out of a single criminal transaction. White, supra, at 254. Such a rule protects a defendant* against harassment, while at the same time promoting the economical use of judicial time and preventing prosecutorial sentence shopping. White, supra, at 258-259.

However, the Court in White recognized that the rule announced therein could be subject to exceptions. The Court stated:

"We are aware that in certain situations, strict application of the same transaction test could lead to the anomalous result of foreclosing prosecution for an offense where the state had made a diligent and good faith effort to protect the defendant’s constitutional rights.
"We emphasize that our primary objective in adopting the same transaction test is to insure that a criminal defendant receives meaningful protection under the double jeopardy clause. If actual situations should arise in which application of the same transaction test would not serve that objective, we will, in such a case, consider the adoption of limited exceptions to the same transaction test.” White, supra, at 258, n. 6.

We believe that the instant case presents circumstances warranting an exception to the application of the "same transaction test”. The prosecutor made every effort to protect defendant’s right to have these charges joined. However, he was thwarted in his attempt by the arguments of defense counsel. Under these circumstances we are convinced that a sufficient effort was made by the prosecutor to protect defendant’s constitutional rights.

Therefore, we hold that the present fact situation provides an exception to the application of the same transaction test. In so holding, we note that our decision will do no injustice to the underlying policies of the same transaction test. This is not a case involving prosecutorial sentence-shopping or harassment. Rather this case presents a good faith eifort on the part of the prosecutor to protect defendant’s rights. Under these circumstances we conclude that the trial on the assault charges is not barred.

Reversed and remanded.

       A similar result was reached in State v Roach, 271 Or 764; 534 P2d 508 (1975).


author: Per Curiam.

text:
    BEDNARSKI v GENERAL MOTORS CORPORATION
    Docket No. 31086.
    Submitted May 2, 1978, at Detroit.
    Decided February 6, 1979.
    Stella Bednarski brought a wrongful death action against General Motors Corporation, her deceased husband’s former employer, in circuit court. She also petitioned for a hearing before the Workmen’s Compensation Bureau. The complaint alleged that her husband died as a result of lung cancer which physicians who were agents and employees of General Motors failed to detect or reveal to the decedent during a series of physical examinations and X-ray examinations from 1972 to 1975. Defendant filed a motion for summary judgment for the reason that the sole and exclusive remedy available was workmen’s compensation benefits. Summary judgment for defendant, Wayne Circuit Court, Joseph B. Sullivan, J. Plaintiff appeals. Held:

    The Workmen’s Compensation Bureau is required to determine if the injury was work related and compensable or noncompensable under the Worker’s Disability Compensation Act.
    Reversed and remanded. The circuit court case is to be held in abeyance until the bureau can make its determination. If compensability is found, the exclusive remedy provision of the act applies and judgment for defendant is to be affirmed; if noncompensable, the circuit court action may proceed.
    1. Workmen’s Compensation — Exclusive Remedy — Statutes.
    Workmen’s compensation benefits are the exclusive remedy available to an employee against his employer where the employee’s injury is within the scope of the Worker’s Disability Compensation Act (MCL 418.131; MSA 17.237[131]).
    2. Workmen’s Compensation — Exclusive Remedy — Employer-Employee Relationship — Statutes.
    The exclusive remedy provision of the Worker’s Disability Compensation Act applies where recovery is sought for personal injuries arising out of and in the course of employment and where the claim is based upon the employer/employee relationship between the parties (MCL 418.301; MSA 17.237[301]).

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation § 50.

       81 Am Jur 2d, Workmen’s Compensation §§ 46, 64.

      3. Workmen’s Compensation — Exclusive Remedy — Nonemployment Injury — Courts — Jurisdiction.
    The exclusive remedy provision of the Worker’s Disability Compensation Act does not bar actions against an employer by an employee if the employment relationship subsisting between them is only incidentally related to a claim resting on another basis such as a vendor/vendee relationship; under these circumstances the courts have jurisdiction to determine the rights and liabilities of the parties.
    4. Workmen’s Compensation — Administrative Law — Exclusive Remedy — Pleadings — Jurisdiction.
    The mere omission of workmen’s compensation assertions from pleadings which would reveal the applicability of the exclusive remedy provision of the Worker’s Disability Compensation Act cannot confer jurisdiction on the courts; jurisdiction for the determination of all disputes relating to workmen’s compensation is vested exclusively in the Workmen’s Compensation Bureau.
    5. Workmen’s Compensation — Administrative Law — Exclusive Remedy — Torts — Courts — Administrative Agencies — Jurisdiction.
    The question of whether an employee’s injury arose from his working conditions and thus would subject him to the exclusive remedy provisions of the Worker’s Disability Compensation Act or whether an injury was not compensable under the compensation act, which would allow a tort action in circuit court, is for the Workmen’s Compensation Bureau.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by David K Barnes), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Jeannette A. Paskin), for defendant.
    Before: M. F. Cavanagh, P.J., and Bronson and D. F. Walsh, JJ.
   Per Curiam.

Plaintiff, the administratrix of her husband’s estate, appeals from the granting of summary judgment for defendant, her late husband’s employer. Plaintiff commenced suit by filing this wrongful death action in circuit court. She also petitioned for hearing before the Workmen’s Compensation Bureau. Only the first action is now before the Court. Her complaint, as amended, alleged that her husband died as a result of lung cancer which physicians who were the agents and employees of defendant failed to detect or reveal to the decedent during a series of physical examinations and X-ray examinations in 1972-1975. Defendant filed a motion for summary judgment for the reason that the sole and exclusive remedy available to the estate was workmen’s compensation benefits.

Where an employee’s injury is within the scope of the Worker’s Disability Compensation Act, workmen’s compensation benefits are the exclusive remedy available to the employee against the employer. MCL 418.131; MSA 17.237(131), Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1 (1975), Szydlowski v General Motors Corp, 397 Mich 356, 358; 245 NW2d 26 (1976). An action is precluded by the exclusive remedy provision of the act if it seeks recovery for a personal injury arising out of and in the course of employment and if the suit is based upon the employer/employee relationship between the parties. MCL 418.301; MSA 17.237(301), Neal v Roura Iron Works, Inc, 66 Mich App 273, 275; 238 NW2d 837 (1975), lv den 396 Mich 841 (1976). The act does not bar actions against an employer by an employee if the employment relationship subsisting between them is only incidentally related to a claim resting on another basis such as vendor/vendee relationship. Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971). Under such circumstances the courts have jurisdiction to determine the rights and liabilities of the parties. Modeen v Consumers Power Co, 384 Mich 354, 360-361; 184 NW2d 197 (1971), Bonney v Citizens’ Mutual Automobile Insurance Co, 333 Mich 435, 440; 53 NW2d 321 (1952).

Plaintiffs original complaint and first amended complaint assumed the form of a wrongful death action based on medical malpractice; the fact that the decedent had been defendant’s employee was mentioned, but there was no statement that decedent’s injury arose out of or in the course of employment or that the action was based on the employment relationship. If such was nonetheless the situation, plaintiffs exclusive remedy is furnished by the Worker’s Disability Compensation Act. Szydlowski v General Motors Corp, supra. The pleadings appear to have been framed to avoid the Szydlowski holding. The mere omission of assertions from the pleadings which would reveal the applicability of the exclusive remedy provision cannot confer jurisdiction on the courts. St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975). We are currently not in a position to say whether Szydlowski is distinguishable from the instant case on the basis of the actual underlying facts.

We note that plaintiff has filed a workmen’s compensation claim based on the same facts as the instant case. As acknowledged in plaintiffs appellate brief, the Workmen’s Compensation Bureau is the appropriate forum to consider this claim. MCL 418.841; MSA 17.237(841), Herman v Theis, 10 Mich App 684, 688-689; 160 NW2d 365 (1968), lv den 381 Mich 772 (1968), St Paul Fire & Marine Insurance Co v Littky, supra, at 378, Szydlowski v General Motors Corp, supra, at 358-359. Defendant also has asserted by way of affidavit in the trial court that decedent was defendant’s employee when he received medical services from it and that his exclusive remedy was under the Worker’s Disability Compensation Act and that "the medical services rendered [decedent] were rendered at his place of employment” and that "all services rendered were in the course of decedent’s employment * * * J5

If decedent’s injury arose from his working conditions, then we would agree that plaintiffs exclusive remedy is workmen’s compensation benefits, and the Szydlowski decision is controlling. However, if the Workmen’s Compensation Bureau determines that the decedent’s injury was not compensable under the act, the plaintiff may then pursue her common-law remedy in a tort action in circuit court.

"When the employer’s fault takes the form of negligence in not disclosing to the employee the existence of a noncompensable disease discovered in the course of an examination in the company clinic, most cases allow a tort action on the theory that the injury is in no sense work-connected.” 2A Larson, Workmen’s Compensation Law, § 68.35, p 13-39.

To conclude otherwise would leave a plaintiff with a cognizable tort claim, which is nevertheless outside the Worker’s Disability Compensation Act, without remedy. Herman v Theis, supra, Panagos v North Detroit General Hospital, supra, accord, Wojcik v Aluminum Company of America, 18 Misc 2d 740; 183 NYS2d 351 (1959).

Accordingly, we reverse and remand to the circuit court to hold in abeyance pending the outcome of the workmen’s compensation proceedings. If the board finds the injury compensable, defendant may have its accelerated judgment in this case. If the appeal board finds that it does not have jurisdiction because the wrong complained of is not an injury compensable under the act, this case may proceed. Costs to abide final determination.

       The motion should have been denominated a motion for accelerated judgment. GCR 1963, 116.1(2), St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 377; 230 NW2d 440 (1975). But since no prejudice to the plaintiff is alleged or apparent, we treat the motion as one for accelerated judgment. Pease v North American Finance Corp, 69 Mich App 165, 167; 244 NW2d 400 (1976), lv den 399 Mich 883 (1977).


text:
    CRONIN v CITY OF HAZEL PARK
    Docket No. 77-2362.
    Submitted October 11, 1978, at Lansing.
    Decided February 6, 1979.
    Plaintiff Mary K. Cronin was injured while participating in a roller skating activity conducted by the Hazel Park Recreation Department at the community center when she collided with another skater. She and her husband, James M. Cronin, sued the city alleging negligent supervision. The Oakland Circuit Court, Robert B. Webster, J., dismissed plaintiffs’ suit, ruling that the defendant was protected by governmental immunity. Plaintiffs appeal. Held:

    The operation of a roller skating program by the recreation department of a municipal corporation is not of essence to governing and the municipal corporation is not immune from tort liability for injuries resulting therefrom.
    Reversed and remanded.
    Municipal Corporations — Torts — Governmental Immunity — Governmental Function.
    The operation of a roller skating program by the recreation department of a municipal corporation is not of essence to governing and the municipal corporation is not immune from tort liability for injuries resulting therefrom.
    References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 27.
    Municipal immunity from liability for Torts. 60 ALR2d 1198.

      Pianin, Graber & Pauli, P.C., for plaintiffs.

      George A. Hilborn (by Paul Abbo), for defendant.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Per Curiam.

Coplaintiff Mary Cronin was injured while participating in a roller skating activity conducted by the defendant’s recreation department at a community center building in Hazel Park. The injury allegedly occurred when another skater collided with Mrs. Cronin. Plaintiffs claim that negligent supervision of the event caused that collision and resultant injury. By motion for accelerated judgment, under GCR 1963, 116.1, defendant claimed governmental immunity. Upon grant of that motion the trial court dismissed the suit. Plaintiffs appeal as of right.

Since the common law doctrine of governmental immunity has been abrogated in this state, Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), defendant’s claim is controlled by the governmental immunity act of 1964, MCL 691.1401-691.1415; MSA 3.996(101)-3.996(115). Thomas v Department of State Highways, 398 Mich 1; 247 NW2d 530 (1976).

The basic provision of the governmental immunity act is § 7. It provides that "all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function”. MCL 691.1407; MSA 3.996(107).

Until the most recent Supreme Court decisions on the topic the term "governmental function” has been defined by reference to the common law as it stood at the time of the statute’s enactment. Thomas v Department of State Highways, supra. In Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), the Court changed its approach. Four Justices, Fitzgerald, Kavanagh, Levin and Moody, agreed that the term "governmental function” was subject to judicial refinement.

Exercising that newly pronounced power of refinement, Justices Fitzgerald, Kavanagh, Levin and Moody seem to agree that the basic guideline for determining whether a particular function is governmental is whether it is "of essence to governing”. There is a three to one split among those four justices, however, as to the scope of governmental essence.

Thus, in Parker all four agreed that the day-today operation of a general hospital is not governmental. Whereas, in Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NE2d 421 (1978), they disagreed whether the operation of a mental hospital is governmental. Justice Moody found that it is governmental. Justices Fitzgerald, Kavanagh and Levin found it to be nongovernmental.

As described by Justice Moody, the basic line of distinction between his approach and that of Justices Fitzgerald, Kavanagh and Levin is that he believes some operational activities of government and some activities which have common analogies in the private sector may be deemed essential to governing. Parker v City of Highland Park, 404 Mich 183, 200. The latter three justices apparently would hold that all such activity is nongovernmental. See Thomas v Department of State Highways, supra, pp 21-25.

In determining that the operation of a general hospital is nongovernmental, Justice Moody found five factors to be relevant. First, the number of private general hospitals is far greater than the number of governmental hospitals in this state. Second, the fiscal involvement of the state in the operation of such hospitals is significantly displaced by private payment. Third, government has little direct responsibility for placing patients in public general hospitals. Fourth, the day-to-day care afforded to the substantial majority of patients in general hospitals is not of a uniquely governmental character or precipitated by governmental mandate. Fifth, holding cities liable for negligent operation of general hospitals would not be an unacceptable interference with their ability to govern. The operation of a state mental hospital he distinguished on the grounds that government plays a pervasive role in the area of mental health, appropriating substantial state funds to that field and declaring as a public policy the care and treatment of mentally disabled persons. Also, he reasoned that the number of private mental hospitals available to the judiciary to deal with the institutional needs of the public is inadequate. Finally he found that the day-to-day care by an attendant, physician, or other employee on the staff of a mental hospital represents a uniquely governmental function. Justice Moody noted that the line of demarcation between general hospitals and mental hospitals was imperfect but just, within the confines of the present statute.

Following Parker, we hold that the operation of a roller skating program by a municipal corporation is not of essence to governing. We conclude that such activity is nongovernmental even under Justice Moody’s broader statement of the governmental essence test.

Since the function at issue in this case is not governmental, there is no need to determine whether the activity specifically complained of was an exercise or discharge of that function. See Duncan v Detroit, 78 Mich App 632, 634; 261 NW2d 26 (1977), citing Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976) (Williams, J.). Neither must we consider whether any of the statutory exceptions to governmental function immunity is applicable. See MCL 691.1402, 691.1405, 691.1406; MSA 3.996(102), 3.996(105), 3.996(106).

Reversed and remanded. No costs, a public question.


text:
    COVINGTON v INTERSTATE SYSTEM
    Docket No. 77-3413.
    Submitted October 3, 1978, at Detroit.
    Decided February 6, 1979.
    William Covington, an employee of Interstate System, was injured in a traffic accident while driving a truck owned by Interstate. The truck was registered and licensed in another state. Interstate was a self-insurer under the no-fault insurance statute, and Covington brought an action against Interstate for recovery of certain no-fault benefits. The Wayne Circuit Court, Richard N. Loughrin, J., granted summary judgment for Interstate on the grounds that the vehicle Covington was driving was not subject to the coverage of the no-fault act and that Covington’s exclusive remedy was worker’s compensation. Plaintiff appeals. Held:

    Summary judgment was proper. The vehicle was not covered by or subject'to the provisions of the no-fault act and, therefore, Covington was not entitled to recover the no-fault benefits sought.
    Affirmed.
    1. Automobiles — Insurance — No-Fault — Vehicles Covered — Statutes.
    Only those vehicles required to be registered in Michigan are subject to the requirements of the no-fault insurance act; therefore, a truck engaged in interstate commerce and registered in another state is not within the class of vehicles upon which no-fault coverage is required (MCL 500.3101[1]; MSA 24.13101[1]).
    2. Automobiles — Insurance — No-Fault — Vehicles Covered — Statutes.
    A truck operated in interstate commerce, registered in another state, which is not operated in Michigan for more than 30 days in any calendar year is not covered under the no-fault insurance act and its driver, injured in a traffic accident, is not entitled to no-fault benefits (MCL 500.3101[1], 500.3102[1]; MSA 24.13101[1], 24.13102[1]).

      References for Points in Headnotes

       New Topic Service Am Jur 2d, No Fault Insurance §§ 16, 17.

       New Topic Service Am Jur 2d, No Fault Insurance §§ 16-18.

      Bernstein & Bernstein (by Thomas R. Hext and Harvey M. Hewitt), for plaintiff.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Robert R. Rekiel), for defendant.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   Per Curiam.

Plaintiff was injured in a traffic accident while driving a vehicle registered and licensed in another state, but owned by defendant employer, a Michigan corporation. Plaintiff commenced the present suit seeking to recover no-fault insurance benefits from defendant, a self-insurer, pursuant to MCL 500.3101(4); MSA 24.13101(4). Defendant moved for summary judgment on two separate grounds. First, it contended that the truck plaintiff was driving at the time of the accident was not a vehicle subject to the requirements of the no-fault act. Secondly, defendant claims that even if the truck was a covered vehicle under the no-fault act, plaintiff employee’s exclusive remedy against defendant employer was worker’s compensation. MCL 418.131; MSA 17.237(131).

The general section defining the coverage of the no-fault act is MCL 500.3101(1); MSA 24.13101(1). This section provides as follows:

"The owner or registrant of a motor vehicle required to be registered in this state shall maintain security for payment of benefits under personal protection insurance, property protection insurance, and residual liability insurance. Security shall be in effect continuously during the period of registration of the motor vehicle.”

According to the express language of the statute only those vehicles required to be registered in this state are subject to the requirements of the no-fault act. It is uncontroverted that the truck plaintiff was driving at the time of the accident was neither registered in this state, nor required to be registered in this state. Consequently, it did not fall within the class of vehicles covered by this section of the no-fault act.

The only other coverage section in the no-fault act, MCL 500.3102(1); MSA 24.13102(1), provides as follows:

"A nonresident owner or registrant of a motor vehicle not registered in this state shall not operate or permit the vehicle to be operated in this state for an aggregate of more than 30 days in any calendar year unless he continuously maintains security for the payment of benefits.”

Because it is also uncontroverted that the truck plaintiff was driving at the time of the accident had not been operated in this state for more than 30 days in any given year, the no-fault coverage provided by this section is also not applicable.

Since neither coverage section of the no-fault act is applicable to the truck in question, the truck was not a covered vehicle under the no-fault act and plaintiff is not entitled to no-fault benefits from defendant.

Affirmed.

       The truck plaintiff was driving was a vehicle used in interstate commerce and registered in another state pursuant to MCL 3.161 et seq.; MSA 9.1735 et seq.

       For purposes of this section, the term nonresident includes residents of this state and domestic corporations who have vehicles registered in other states. A contrary holding would result in the anomalous and unacceptable situation where nonresidents would be subject to the requirements of the no-fault act while their counterparts who are residents of this state would be excluded.

       Since our resolution of the first ground presented by defendant disposes of the case, we express no opinion on the merits of defendant’s second argument.


text:
    ALLOSSERY v EMPLOYERS TEMPORARY SERVICE, INC.
    Docket No. 77-4520.
    Submitted November 21, 1978, at Detroit.
    Decided February 6, 1979.
    Leave to appeal applied for.
    Plaintiff Brian W. Allossery, a minor, was hired by defendant Employers Temporary Service, Inc. (ETS), a labor broker, and assigned by ETS to work for defendant R. A. Young Industries, Inc., to run a power press. Plaintiff was injured while operating the press and commenced a suit in the Macomb Circuit Court charging both defendants with negligence. Defendants moved for summary judgment on the ground that plaintiffs exclusive remedy was worker’s compensation. The trial court, Frank E. Jeannette, J., did not grant defendant’s motion but instead ordered the case removed to the Workmen’s Compensation Bureau. Plaintiff appeals that order by leave granted. Held:

    1. Plaintiffs employment was illegal and in contravention of the Hittle Juvenile Employment Act since he did not have a work permit and was engaged in the performance of unduly hazardous work.
    2. The Worker’s Disability Compensation Act includes within its coverage all employed minors regardless of whether their employment is legal or illegal; therefore, the act is their exclusive remedy against their employers.
    3. Michigan has not adopted a distinction between void and illegal employment contracts with respect to the Worker’s Disability Compensation Act, therefore, a minor employed in violation of the child labor law is merely illegally employed and as such is subject to the provisions of the Worker’s Disability Compensation Act.
    4. Plaintiff is a covered employee under the Worker’s Disability Compensation Act and both defendants are plaintiffs employer for purposes of the act, therefore, plaintiffs exclusive remedy is worker’s compensation.
    5. Defendants’ motions for summary judgment should have been and hereby are granted since both defendants are plaintiffs employers under the act and the facts as pled if true and if properly presented to the Workmen’s Compensation Bureau would clearly entitle plaintiff to benefits.

      References for Points in Headnotes

       81 Am Jur 2d, Workmen’s Compensation § 165.

       53 Am Jur 2d, Master and Servant §§ 154,155.

       53 Am Jur 2d, Master and Servant § 26.

       53 Am Jur 2d, Master and Servant § 2.

      Affirmed as modified.
    1. Workmen’s Compensation — Employed Minors — Illegal Employment — Employees Covered Under Workmen’s Compensation — Exclusive Remedies.
    The Worker’s Disability Compensation Act includes within its coverage all employed minors regardless of whether their employment is legal or illegal; since the act clearly makes provisions for illegally employed minors, they are covered employees under the act, and the act is their exclusive remedy against their employers.
    2. Workmen’s Compensation — Employment of Minors — Hittle Juvenile Employment Act — Legal Employment — Illegal Employment — Statutes.
    Minors employed in compliance with the Hittle Juvenile Employment Act are legally employed minors and are treated the same as any other employee under the Worker’s Disability Compensation Act; minors hired in contravention of the Hittle act are illegally employed, and if injured, their employers are assessed double compensation benefits as a penalty for failing to comply with the act (MCL 409.1 et seq.; MSA 17.701 et seqj.

    3. Master and Servant — Hittle Juvenile Employment Act — Work Permits — Unduly Hazardous Work — Statutes.
    The Hittle Juvenile Employment Act prohibited employers from hiring minors under 18 years of age until the employer procured a work permit from the minor; the act also prohibited employers from hiring minors for unduly hazardous work (MCL 409.2, 409.3, 409.6; MSA 17.702, 17.703, 17.706).
    4. Master and Servant — Dual Employment.
    One who is in the general employ of one employer may become the special employee of another under certain circumstances.
    5. Workmen’s Compensation — Employment — Master and Servant — Control — Economic Reality.
    The old touchstone of "control” as used in determining whether an employment relationship exists for purposes of workmen’s compensation has been de-emphasized in favor of the broader test of "economic reality” which uses a freer and more realistic balancing of all the relevant factors in each case.

      Fitzgerald, Young, Peters, Bruno & Bunn, and Buell A. Doelle, for plaintiff.

      Jenkins, Nystrom & Sterlacci, P.C. (by Stephen J. Hitchcock), for defendant Employers Temporary Service, Inc.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Jeannette A. Paskin), for defendant R. A. Young Industries, Inc.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

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

   Per Curiam.

Plaintiff appeals by leave an order of the trial court removing the present action from circuit court to the Workmen’s Compensation Bureau.

Plaintiff, a 15-year-old, was hired by Employers Temporary Service, Inc. (E.T.S.), a labor broker. On his application for employment, plaintiff misrepresented his age as 19. E.T.S. indicated that plaintiff would be required to provide proof of his age at his next visit to the hiring hall, but no such proof was ever offered or requested. E.T.S. assigned plaintiff to work for R. A. Young Industries, Inc., where he was employed in running a power press. While operating the press, plaintiff suffered a traumatic amputation of the index and middle fingers of his right hand together with a portion of the hand itself.

Plaintiff commenced the present suit against E.T.S. and R. A. Young Industries, Inc., charging both defendants with negligence. Defendants moved for summary judgment on the ground that plaintiff’s exclusive remedy was worker’s compensation. See MCL 418.131; MSA 17.237(131). Plaintiff replied that since his contract of hire was prohibited by the Hittle Juvenile Employment Act, MCL 409.1 et seq.; MSA 17.701 et seq., the contract was void and he could not be considered an employee of defendants for purposes of the Worker’s Disability Compensation Act. The trial court did not grant defendants’ motions for summary judgment, but instead removed the case to the Workmen’s Compensation Bureau. Plaintiff now appeals that order by leave.

The Hittle Juvenile Employment Act prohibited employers from hiring minors under 18 years of age until the employer procured from the minor a work permit. MCL 409.3; MSA 17.703. The act also prohibited employers from hiring minors for unduly hazardous work. MCL 409.2, 409.6; MSA 17.702, 17.706. Defendants concede the fact that plaintiff did not have a work permit and that he was engaged in the performance of unduly hazardous work. It is, therefore, clear that plaintiff’s employment was in contravention of the act and thus illegal.

This determination, however, does not mean that plaintiff could not have been a covered employee under the worker’s compensation act. The definition of employee for purposes of the act is contained in MCL 418.161; MSA 17.237(161).

"(1) An employee as used in this act shall mean:
"(b) Every person in the service of another, under any contract of hire, express or implied, including aliens, a person regularly employed on a full-time basis by his spouse having specified hours of employment at a specified rate of pay, working members of partnerships receiving therefrom wages irrespective of profits, a person insured for whom and to the extent premiums are paid based on wages, earnings, or profits, and minors, who shall be considered the same as and have the same power to contract as adult employees. Any minor under 18 years of age whose employment at the time of injury shall be shown to be illegal, in the absence of fraudulent use of permits or certificates of age in which case only single compensation shall be paid, shall receive compensation double that provided in this act.”

The act specifically includes within its coverage all employed minors regardless of whether their employment is legal or illegal. The act does not itself define the term illegal employment, and thus to determine the legality of a minor’s employment one must refer to the Hittle Juvenile Employment Act. Field v Jack & Jill Ranch, 343 Mich 273, 280; 72 NW2d 26 (1955). Those minors employed in compliance with the act’s requirements are legally employed minors and are treated the same as any other employee under the worker’s compensation act. Those minors hired by employers in contravention of the Hittle act, however, are illegally employed, and if injured, their employers are assessed double compensation benefits, as a penalty for failing to comply with the act. Since the worker’s compensation act clearly makes provisions for illegally employed minors, they are covered employees under the act, and the act is their exclusive remedy against their employers.

Plaintiff seeks to distinguish, however, between those minors whose employment is illegal and those whose employment is void. According to plaintiff, a minor’s employment is illegal when the work in which he is engaged is a permissible occupation, but the proper work permits have not been filed. A minor’s employment is allegedly void when the work is unduly hazardous so that even if the proper work permits were filed, the minor still could not have engaged in the work. Such a distinction has never been adopted in Michigan, and was specifically rejected in Thomas v Morton Salt Co, 253 Mich 613; 235 NW 846 (1931), aff'd on reh 258 Mich 231; 242 NW 235 (1932).

In Thomas, the minor, a 17-year-old boy, was employed by defendant salt company to oil and grease electric motors. A number of these motors were suspended over large vats of boiling brine. While cleaning the motors the minor fell into one of the vats and was killed. As is the situation in the present case, the child labor law then in force prohibited minors from being employed in unduly hazardous occupations; and employment which would require a person to work on motors suspended from the ceiling over large vats of boiling brine would certainly be considered unduly hazardous. The Court, however, rejected the position advocated by the dissent in Thomas, and presently espoused by plaintiff, that because the minor’s employment was prohibited by the child labor law, his contract of employment was void and thus he could not be an employee under the workmen’s compensation act. Instead, the Court reversed the trial court’s award of common law damages and held that the workmen’s compensation law which granted illegally employed minors between the ages of 16 and 18 double compensation in case of injury "abrogates the judicial rule that a contract of employment made in violation of child labor laws carrying criminal penalties is void”, Thomas at 625.

Since Michigan has not adopted the distinction between void and illegal employment contracts, any minor employed in violation of the child labor law is merely illegally employed and as such is subject to the provisions of the worker’s compensation act.

The second question presented for review is whether both defendants can be considered plaintiffs employer and thus protected by the act’s exclusive remedy provision. This question was answered in the affirmative in Renfroe v Higgins Rack Coating & Manufacturing Co, Inc, 17 Mich App 259; 169 NW2d 326 (1969).

Since plaintiff is a covered employee under the worker’s compensation act and both defendants are his employer for purposes of the act, plaintiffs exclusive remedy is worker’s compensation. Defendants’ motions for summary judgment should have been and hereby are granted. GCR 1963, 820.1(7).

Affirmed as modified.

       The Hittle Juvenile Employment Act was repealed by 1978 PA 90 and replaced by MCL 409.101 et seq.; MSA 17.731(1) et seq.

       1929 CL 8326.

       1927 PA 162.
      This act only awarded double compensation to illegally employed minors between the ages of 16 and 18. The act was subsequently amended to include all illegally employed minors. Thus, the reasoning the Court used to declare that illegally employed 16 to 18 year olds could be subject to the worker’s compensation act would now be applicable to all illegally employed minors.

       This Court is definitely not alone in rejecting the alleged distinction between void and illegal contracts of employment with respect to the worker’s compensation act. See, IB Larson, Workmen’s Compensation Law, §§ 47.51-47.52(b).

       In its order removing the case to the Workmen’s Compensation Bureau, the trial court stated that if the bureau found defendants co-liable for benefits their motions for summary judgment would be granted, but if either defendant was found not to be liable under the act, trial would continue as to that defendant. Since both defendants are plaintiffs employers under the act and the facts as pled if true and if properly presented to the Workmen’s Compensation Bureau would clearly entitle plaintiff to benefits, there is no need to delay granting defendants’ motions for summary judgment.


text:
    JACOBS v DEPARTMENT OF MENTAL HEALTH
    Docket No. 78-188.
    Submitted October 11, 1978, at Lansing.
    Decided February 6, 1979.
    Andrew Jacobs brought an action against the Department of Mental Health for damages, alleging that he had been the victim of an assault and battery by an attendant at a state mental facility in which the plaintiff was an in-patient. The attendant testified by deposition that the incident complained of was provoked by the plaintiff. The Court of Claims, Stanley Everett, J., granted the defendant’s motion for summary judgment on the basis of governmental immunity. Plaintiff appeals, claiming that his allegation of an intentional tort is sufficient to avoid governmental immunity. Held:

    An act may be in exercise or discharge of a governmental function, and thereby protected by governmental immunity, even though the act amounts to an intentional tort. A plaintiff is obliged to plead facts in avoidance of governmental immunity, and in this case the plaintiff relied solely on his allegation of an intentional tort. The deposition testimony of the attendant related circumstances under which the alleged assault and battery was sufficiently related to the function of the mental health facility to be in exercise or discharge of that function and this testimony was not refuted by the plaintiff.
    Affirmed.
    1. Torts — Governmental Immunity — Mental Hospitals — Statutes.
    The operation of a state mental hospital is a governmental function for purposes of immunity under the governmental immunity statute (MCL 691.1407; MSA 3.996[107]).
    References for Points in Headnotes

       57 Am Jur 2d, Municipal, School and State Tort Liability §§ 42-44.
    40 Am Jur 2d, Hospitals and Asylums §§ 2, 20-23.
    Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital. 25 ALR2d 207, 210-215.

       57 Am Jur 2d, Municipal, School and State Tort Liability § 79.
    73 Am Jur 2d, Summary Judgment §§ 1, 20, 22.

      2. Torts — Intentional Torts — Governmental Function.
    An act, even though it amounts to an intentional tort, may in proper circumstances be in exercise or discharge of a governmental function.
    3. Torts — Governmental Immunity — Avoidance of Immunity.
    Avoidance of governmental immunity is an element of a plaintiffs claim against a state agency based upon the alleged intentional tort of an agency employee, and, to avoid summary judgment, the plaintiff must establish a question of fact as to each element of his claim by affidavit, pleading, deposition, admission or other documentary evidence; a plaintiff who has alleged an assault and battery by a mental hospital attendant has not avoided summary judgment based on governmental immunity where he has not refuted deposition testimony by the attendant which relates circumstances under which the alleged assault and battery was sufficiently related to the function of the hospital to be an exercise or discharge of that function.

      Morback, Cheatham & MacArthur (by Stephen J. Smith), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker, Terry J. Nosan and Christopher J. Dembowski, Assistants Attorney General, for defendant.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Per Curiam.

Plaintiff sued the Department of Mental Health, under a theory of vicarious liability, for damages sustained from an alleged assault and battery against the plaintiff by an attendant at a state mental facility. The Court of Claims granted summary judgment for defendant. The plaintiff was an in-patient at the facility when the alleged beating occurred. In his deposition the attendant testified that the incident of which the plaintiff complains was provoked by the plaintiff’s repeated violations of the hospital’s rules against smoking, his refusal to leave his room with other patients for breakfast and his physical aggression towards the attendant when the latter ordered the plaintiff to leave his room. The defendant state agency claims sovereign immunity. See generally, MCL 691.1401-691.1415; MSA 3.996(101)-3.996(115). In opposition to that claim, the plaintiff argues that his complaint, by alleging an intentional tort, states sufficient facts in avoidance of governmental immunity. As authority for that argument, he relies on Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976).

Since the common law doctrine of soverign immunity has been abrogated in this state, Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), defendant’s claim is governed by statute. By § 7 of the governmental immunity act of 1964, the state and its agencies are generally "immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function”. MCL 691.1407; MSA 3.996(107). Recently, the Supreme Court has affirmed the position taken by this Court that the operation of a mental hospital is a governmental function. Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978); see Allen v Department of Mental Health, 79 Mich App 170; 261 NW2d 247 (1977).

Further examining the specific complained-of activity in this case—the alleged assault and battery—we must determine whether it was "in the exercise or discharge” of that governmental function. See Galli v Kirkeby, supra, at 536-537; 248 NW2d at 151-152, Spruytte v Department of Corrections, 82 Mich App 145; 266 NW2d 482 (1978), Duncan v Detroit, 78 Mich App 632; 261 NW2d 26 (1977) . Contrary to the plaintiffs assertion, an act may be an exercise or discharge of a governmental function even though it amounts to an intentional tort. Lee v Utica, 83 Mich App 679; 269 NW2d 267 (1978) . Indeed, according to Professor Cooperrider, it is the likelihood that a governmental actor may have "to act directly upon persons and property, overcoming resistence if necessary”, which may distinguish his activities as "governmental”. Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 283 (1973). To illustrate that point Professor Cooperrider lists such activities as those associated with police work, fire fighting, inspection and custodial employment. We take notice that an attendant at a mental hospital serves partially in a custodial capacity.

Plaintiffs reliance on Galli v Kirkeby is misplaced. That case only held that an activity which bears no arguable relationship to a governmental function cannot be an exercise or discharge of that governmental function. In the present case, under the circumstances related in the attendant’s deposition, which circumstances plaintiff has not refuted by pleading, deposition, affidavit or other documentary evidence, the alleged assault and battery by the attendant was sufficiently related to the function of the mental facility to be an exercise or discharge of it. Compare, e.g., Lee v Utica, supra, with Kriger v South Oakland County Mutual Aid Pact, 399 Mich 835; 250 NW2d 67 (1977), rev’g 49 Mich App 7; 211 NW2d 228 (1973).

None of the express exceptions to governmental function immunity is here applicable. See MCL 691.1402, 691.1405, 691.1406; MSA 3.996(102), 3.996(105), 3.996(106).

Affirmed. No costs, a public question involved.

       Avoidance of governmental immunity has been construed as an element of the plaintiff’s claim. See McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976) (Ryan, J.). But see Pagano v Department of State Highways, 76 Mich App 569, 575-576; 257 NW2d 172 (1977). To avoid summary judgment, the plaintiff must establish a question of fact as to each element of his claim by affidavit, pleading, deposition, admission or other documentary evidence. Bob v Holmes, 78 Mich App 205; 259 NW2d 427 (1977). In opposition to the state’s motion for summary judgment and/or accelerated judgment in this case, the plaintiff relied solely on the allegation in his complaint that the alleged tort was intentional.


text:
    Harris v McVickers
    Docket No. 78-685.
    Submitted December 19, 1978, at Detroit.
    Decided February 6, 1979.
    Leave to appeal denied, 406 Mich 929.
    Judith C. Harris, Edward Harris her husband, and Beverly J. Boughner brought an action in Wayne Circuit Court for injuries sustained by Judith and Beverly as a result of an automobile accident with defendant John E. McVickers. Edward Harris joined in the complaint seeking damages for his wife’s medical expenses and for loss of consortium. Defendant filed a motion for summary judgment alleging that there was no issue as to a material fact since the injuries claimed did not constitute "serious impairment of body function” so as to meet the threshold tort requirements of the no-fault automobile insurance act. Judgment for defendant, Joseph G. Rashid, J. Plaintiffs appeal. Held:

    The question of serious body impairment can either be a question of law or of fact under the no-fault automobile insurance act. Plaintiffs may have suffered discomfort but the degree of their injuries was insufficient to meet the threshold requirements of serious body impairment under the no-fault act; therefore, since no reasonable jury could view plaintiffs’ injuries as serious, it was a question of law for the court to decide and the granting of summary judgment was proper.
    Affirmed.
    1. Judgment — Summary Judgment — Genuine Issues of Fact — Burden of Proof — Court Rules.
    A motion for summary judgment grounded on there being no genuine issue as to a material fact is designed to test whether factual support exists for the claim made; the party opposing the motion must come forward with some proof to establish the existence of a genuine issue of a material fact (GCR 1963, 117.2[3]).

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment §§ 1, 2, 15.

       73 Am Jur 2d, Summary Judgment § 1.

       New Topic Service Am Jur 2d, No Fault Insurance § 26.
    73 Am Jur 2d, Summary Judgment §§ 26, 27, 32.

      2. Judgment — Summary Judgment — Genuine Issues of Fact.
    Summary judgment amounts to an application of law to undisputed facts.
    3. Automobiles — Insurance — No-Fault — Torts — Serious Body Impairment — Jury Question — Legal Question — Threshold Injury Requirements — Judgment — Summary Judgment — Statutes.
    The question of serious body impairment under the automobile no-fault insurance act can either be a question of law or of fact; it is a question of law where it can be said with certainty that no reasonable jury could view a plaintiffs impairment as serious; therefore, summary judgment for defendant in an action arising out of an automobile accident was proper where, although plaintiffs suffered discomfort due to an accident, the degree of injury was insufficient to meet the minimum threshold requirements of the no-fault act (MCL 500.3135[1]; MSA 24.13135[1]).

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiffs.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C. (by Thomas F. Myers and Mark R. Bendure), for defendant.
    Before: M. F. Cavanagh, P.J. and Bashara and Allen, JJ.
   Per Curiam.

Plaintiffs appeal from an order of summary judgment for defendant. Plaintiffs’ suit for damages stems from injuries sustained in an automobile accident. One plaintiff alleges headaches and the other a stiff neck, knee pains, and headaches.

Defendant contends there was no issue as to a material fact, GCR 1963, 117.2C3), since the injuries claimed did not constitute "serious impairment of body function” so as to meet the threshold tort requirements of the no-fault act, MCL 500.3135; MSA 24.13135.

A motion for summary judgment grounded on GCR 1963, 117.2(3) is designed to test whether factual support exists for the claim made. The party opposing the motion must come forward with some proof to establish the existence of a genuine issue of a material fact. Bob v Holmes, 78 Mich App 205, 212; 259 NW2d 427 (1977). Summary judgment amounts to an application of law to undisputed facts. See Dembinski v Aetna Casulaty & Surety Co, 76 Mich App 181, 183-4; 256 NW2d 69 (1977).

The controversy in the instant case is not what injuries were sustained but whether such injuries meet the requisite legal threshold necessary to permit a jury determination of the applicability of § 3135.

The threshold issue has been previously addressed by this Court. In McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976), this Court recognized the wisdom of permitting such a determination at the initial level by the trial court. However, due to the Supreme Court’s finding in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), the panel felt constrained to limit the Court’s role to those cases where it could be said with certainty that no reasonable jury could view the plaintiffs impairment as serious.

In Vitale v Danylak, 74 Mich App 615, 619; 254 NW2d 593 (1977), lv den 403 Mich 848 (1978), another panel of this Court acknowledged the McKendrick decision, but upon reexamination of the Supreme Court’s language, held that,

"We do not read the language of the Supreme Court as a complete prohibition of the use of summary judgment whenever a 'serious impairment’ or 'permanent serious disfigurement’ is alleged in the pleadings. While we recognize that generally the trier of fact must make the qualitative decision of whether a particular injury is serious or permanent, it does not follow that the trial judge is in all cases precluded from consideration of those questions.
The Supreme Court held that where the legal interpretation of the terms in question 'approaches or breaches permissible limits’ the interpretation becomes a question of law for the trial court.”

See also Cassidy v McGovern, 86 Mich App 321; 272 NW2d 644 (1978).

Each case must be treated individually to determine whether the alleged injuries fall below certain definitional limits, thereby allowing summary judgment. Vitale, supra, at 620.

There is no doubt that plaintiffs suffered discomfort due to the accident. However, the degree of injury in this case is insufficient to meet the minimum threshold requirement.

Plaintiffs’ claim that the no-fault act violates equal protection must also fail. The constitutionality of the no-fault legislation has recently been upheld in Shavers v Attorney General, 402 Mich 554, 623; 267 NW2d 72 (1978), where the partial abolition of the tort liability was clearly found not violative of the traditional test for equal protection.

Affirmed.

       The motion for summary judgment in this case was erroneously a 117.2(1) motion. However, a review of the record indicates the parties and the trial court proceeded as if the motion was brought pursuant to GCR 1963, 117.2(3). Since the record reveals that neither party was misled, and that the motion was understood, the mislabeling does not constitute reversible error. Todd v Biglow, 51 Mich App 346, 349-50; 214 NW2d 733 (1974), Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397.

       MCL 500.3135(1); MSA 24.13135(1) states:
      “A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.”

       The Supreme Court in Advisory Opinion re Constitutionality of 1972 PA 294, stated:
      "The final question is whether the phrases 'serious impairment of body function’ and 'permanent serious disfigurement’ provide standards sufficient for legal interpretation.
      This Court holds that such phrases are capable of legal interpretation and, indeed, that juries or judges sitting without juries frequently have and do interpret comparable phrases bearing upon various facets of the law. Such findings result from denominated fact questions and thus are within the exclusive province of the triers of fact. Only when interpretation appraoches or breaches permissible limits does it become a question of law for the Court. Such questions must be approached on a case by case basis.”


text:
    PEOPLE v ANDERSON
    Docket No. 78-1383.
    Submitted December 12, 1978, at Lansing.
    Decided February 6, 1979.
    Woodrow Anderson was convicted of delivery of cocaine, Kalamazoo Circuit Court, Patrick H. McCauley, J. The defendant appeals, claiming 1) that he was denied due process because of a delay of 4-1/2 months between the occurrence of the offense and the time of his arrest, 2) that the trial court erred by allowing the prosecution to impeach the defendant by use of a prior conviction for the sale of heroin, 3) that he was entitled to conduct an independent analysis of the alleged cocaine and that the trial court’s refusal to allow an independent scientific examination by an expert of the defendant’s own choice was error, and 4) that the prosecutor failed to comply with the statute which requires that a defendant be supplied immediately with copies of any crime-lab reports which are to be used against a defendant at a preliminary examination and that as a result of this failure, the trial court erred by admitting into evidence a copy of a crime-lab report. Held:

    1. The prosecution was able to justify the delay in arresting the defendant, there was no showing that the delay was deliberate and the trial court’s finding that the defendant suffered no undue prejudice from the delay was not clearly erroneous. Thus, there was no reversible error resulting from the lapse of time between the occurrence of the crime and the defendant’s arrest.
    2. The trial court recognized its discretion on the issue of allowing impeachment of the defendant by use of evidence of the prior conviction for sale of heroin and properly exercised that discretion.
    3. The trial court did not restrict the defendant’s cross-examination of the analyst who identified the substance in question as cocaine. Thus, the trial court’s refusal to allow independent analysis of the substance was not reversible error.

      References for Points in Headnotes

       5 Am Jur 2d, Arrest § 33.

       21 Am Jur 2d, Criminal Law §§ 243, 248, 251.

       21 Am Jur 2d, Criminal Law § 331.
    23 Am Jur 2d, Depositions and Discovery § 308.

       23 Am Jur 2d, Depositions and Discovery § 307.

       21 Am Jur 2d, Criminal Law § 449.
    30 Am Jur 2d, Evidence 1010.

      4. The defendant suffered no prejudice from the delay between the time the prosecution received the lab report and the time that it was furnished to the defendant. The delay did not result in reversible error and the trial court properly allowed the lab report to be admitted into evidence.
    Affirmed.
    1. Constitutional Law — Arrest — Due Process — Delay in Making Arrest.
    Mere delay between the time of the commission of an offense and arrest is not a denial of due process; there is no constitutional right to be arrested.
    2. Constitutional Law — Due Process — Criminal Law — Commencement of Proceedings — Delay — Undue Prejudice.
    The guideline as to whether reversible error was committed when there has been a delay between the date of an offense and the commencement of criminal proceedings is whether the defendant’s right to procedural due process was violated, and such violation will not be found when the delay is explainable, when it was not deliberate, and where no undue prejudice attaches to the defendant.
    3. Discovery — Criminal Law — Discretion of Court.
    Discovery in a criminal case is within the discretion of the trial court.
    4. Discovery — Criminal Law — Denial of Discovery — Cross-Examination.
    A trial court’s denial of criminal discovery generally is not reversible error if a defendant is afforded full opportunity of cross-examination.
    5. Criminal Law — Evidence — Crime-Lab Report — Admissibility of Evidence — Supplying Defendant with Report — Statutes.
    A magistrate’s ruling at a defendant’s preliminary examination that a crime lab technician’s report was admissible as evidence, despite objection by defense counsel to its admission on grounds that the prosecutor failed to furnish "immediately” to the defendant a copy of the technician’s report, was proper where the defendant failed to show that he was prejudiced by the prosecutor’s delay in furnishing a copy of the report to the defendant (MCL 600.2167; MSA 27A.2167).

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

      Robert L. Hencken, for defendant on appeal.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   Per Curiam.

Defendant was convicted by a jury of delivery of cocaine, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b), and sentenced to a term of 5 to 14 years in prison. He appeals as of right, raising four issues.

The transaction forming the basis for defendant’s conviction occurred on December 2, 1975. Defendant was not arrested until April 14, 1976. He argues that this 4-1/2 month delay was a denial of due process because he was unable to remember the occurrence by the time of his trial.

Mere delay between the time of the commission of an oifense and arrest is not a denial of due process. People v Fiorini (On Rehearing), 59 Mich App 243; 229 NW2d 399 (1975). There is no constitutional right to be arrested. Hoffa v United States, 385 US 293, 310; 87 S Ct 408; 17 L Ed 2d 374 (1966), People v Noble, 18 Mich App 300; 170 NW2d 916 (1969). Rather, the guideline is whether the record presents evidence of prejudice resulting from the delay which violates a defendant’s right to procedural due process. People v White, 59 Mich App 164; 229 NW2d 357 (1975), People v Hernan dez, 15 Mich App 141; 170 NW2d 851 (1968). Defendant at bar alleges prejudice because of memory loss—both his own and that of his witnesses.

Even a showing of some evidence is insufficient to mandate reversal for a pre-arrest delay. If the prosecutor is able to explain the delay, show that it was not done deliberately to prejudice the defendant, and establish that no undue prejudice resulted from the delay, then a conviction may still be upheld. Hernandez, supra, at 147, White, supra, at 165.

The prosecution justified the delay on the ground than an earlier arrest would have impaired the undercover agent’s ability to conduct an ongoing narcotics investigation. This is an adequate explanation for such a delay. White, supra, People v Rios, 27 Mich App 54, 58; 183 NW2d 321 (1970) , rev’d on other grounds, 386 Mich 172 (1971) . There was no showing that the delay was deliberate. Finally, the trial court’s finding that no undue prejudice resulted is not clearly erroneous. The requirements of Hernandez have, therefore, been met. People v Rhymes, 62 Mich App 27; 233 NW2d 171 (1975).

Defendant next argues that thé trial court erred by allowing the prosecutor to impeach him by use of a prior conviction for the sale of heroin. The court recognized and properly exercised its discretion on the matter pursuant to People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

The third argument raised by defendant is that he was entitled to conduct an independent analysis of the alleged cocaine. Discovery in a criminal case is within the discretion of the trial court. People v Maranian, 359 Mich 361, 368; 102 NW2d 568 (1960). At present there is no inherent right to conduct an independent scientific examination with an expert of one’s own choice. People v Bell, 74 Mich App 270, 275; 253 NW2d 726 (1977). Generally, a trial court’s denial of criminal discovery is not reversible if defendant is afforded full opportunity of cross-examination. People v Jesse Smith, 81 Mich App 190; 265 NW2d 77 (1978). In the instant case defense counsel’s cross-examination of the analyst who identified the cocaine was not restricted by the trial court.

Finally, defendant argues that the prosecutor failed to comply with MCL 600.2167; MSA 27A.2167.

"(1) In a preliminary examination or grand jury proceeding, a report of the findings of a technician of the division of crime detection of the department of public health or a technician of the scientific laboratory section of the department of state police, signed by that technician, or a notarized copy of the report, may be received in evidence in place of the technician’s appearance and testimony.
"(2) Prior to a preliminary examination at which the technician’s report of findings will be introduced in evidence, 2 copies of the report shall be furnished to the prosecuting attorney. The prosecuting attorney shall immediately furnish 1 copy of the technician’s report to the defense attorney or, if an appearance or appointment of defense counsel has not been filed, to the defendant.
"(3) The prosecuting attorney, upon receiving copies of the technician’s report, shall notify the court before which the preliminary examination will be held that copies of the technician’s report are in the prosecutor’s possession. If the prosecuting attorney fails to notify the court that he has received copies of the technician’s report not less than 5 days before the day set for preliminary examination, the court shall adjourn the preliminary examination.
"(4) An accused person or his attorney may request that the technician testify in person at the preliminary examination on behalf of the state by serving written notice on the prosecuting attorney not more than 5 days after receiving a copy of the technician’s report of findings from the prosecuting attorney.”

At the preliminary examination, the people sought to introduce the technician’s report. Defendant objected to its admission on the grounds that it was not furnished to him "immediately” as required by subsection 2 of the statute. The record indicates that the prosecutor held the report for five days before defendant received a copy. The examining magistrate ruled the report was admissible.

That ruling was correct. The statute is designed to reduce the number of times a drug analyst is required to testify in criminal proceedings. Nevertheless, upon timely demand, the technician must appear in person at the preliminary examination. MCL 600.2167(4); MSA 27A.2167(4).

No prejudice resulted to defendant from the five-day delay between the time the prosecutor received the report and the time it was furnished to defendant. Defendant received the report April 19, 1976, and the preliminary examination was not held until May 11, 1976. Consequently, defendant had ample time to review the report and determine whether he wished the technician to testify in person. He failed to exercise that right. Absent a showing of prejudice, the prosecutor’s failure to furnish "immediately” a copy of the report is not reversible error.

Affirmed.