author: J. H. Gillis, J.

text:
    JOHNSTON v MID-MICHIGAN TELEPHONE CORPORATION
    Docket No. 45241.
    Submitted December 12, 1979, at Lansing.
    Decided February 6, 1980.
    Leave to appeal denied, 409 Mich 860.
    Lynn Johnston refused to pay that portion of her monthly telephone bill attributable to Federal and state excise taxes and the Mid-Michigan Telephone Corporation discontinued her service. Johnston brought an action against Mid-Michigan seeking an order of mandamus requiring Mid-Michigan to restore her telephone service. The Livingston Circuit Court, Paul R. Mahinske, J., granted motions by the defendant for summary judgment for failure to state a claim upon which relief can be granted and for accelerated judgment for lack of subject-matter jurisdiction. The complaint was dismissed. Plaintiff appeals. Held:

    1. The circuit court did have jurisdiction over the subject matter. An action against a public utility may be heard in the circuit court where the action is one in tort, and in this case the plaintiffs complaint asserted that the defendant wrongfully refused to restore her telephone service.
    2. Mandamus is not a proper remedy in this case. The plaintiff has the alternative remedy of paying the entire telephone bill and then bringing an action for the recovery of the disputed portions.
    Affirmed.
    1. Courts — Circuit Courts — Jurisdiction — Public Utilities — Torts.
    A circuit court has jurisdiction over an action against a public utility where the plaintiffs complaint is one sounding in tort setting forth facts which would constitute tortious conduct to the injury and damage of the plaintiff.
    2. Mandamus — Public Service Corporations.
    A public service corporation may, in certain circumstances, be subject to mandamus.
    References for Points in Headnotes
    [1] 64 Am Jur 2d, Public Utilities § 15.
    [2] 52 Am Jur 2d, Mandamus § 108.
    [3] 52 Am Jur 2d, Mandamus § 5.

      3. Mandamus — Limited Application — Alternative Remedies.
    Mandamus is an extraordinary remedy which may issue only under limited circumstances; where there is a plain, direct and adequate alternative remedy mandamus is inappropriate.
    Lynn Johnston, in propria persona.

      Foster, Swift, Collins & Coey, P.C. (by William K. Fahey), for defendant.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   J. H. Gillis, J.

Plaintiff appeals by right a Livingston County Circuit Court judgment of dismissal granting defendant’s motions for summary judgment for failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), and for accelerated judgment on the ground that the circuit court lacked jurisdiction of the subject matter of plaintiffs complaint, GCR 1963, 116.1(2).

Plaintiff resides in an area of Livingston County in which defendant, Mid-Michigan Telephone Corporation, has been granted an exclusive telephone service franchise by the Michigan Public Service Commission. On August 18, 1976, plaintiff notified defendant of her intention to withhold payment of that portion of her monthly telephone bill attributable to Federal and state excise taxes. Defendant notified plaintiff that it would apply her $50 security deposit to all unpaid portions of her monthly bills and when the deposit was exhausted plaintiff’s service would be disconnected. On December 18, 1976, after plaintiffs delinquency in payment of her telephone bill exceeded the amount of the deposit, defendant disconnected plaintiffs telephone service.

In April, 1977, plaintiff made a written request for reconnection of her telephone service and tendered the required reconnection fee. Defendant refused to honor plaintiffs request upon being advised that plaintiff intended to continue in her refusal to pay the Federal and state taxes.

On June 30, 1978, plaintiff filed her original complaint in Livingston County Circuit Court seeking an order prohibiting defendant from denying her telephone service and further seeking damages for injuries suffered as a result of defendant’s assertedly unlawful action in terminating her telephone service.

On July 28, 1978, defendant moved for summary and accelerated judgment, urging that plaintiff failed to state a claim upon which relief could be granted and that the circuit court lacked jurisdiction of the subject matter. In an order dated August 18, 1978, plaintiff’s claim for injunctive relief was dismissed and the remainder of the claim was remanded to the district court.

In the district court, defendant again moved for accelerated judgment. On November 8, 1978, the district court dismissed plaintiff’s complaint without prejudice for the reason that it possessed no jurisdiction over the matters pleaded therein. Primary jurisdiction of such matters was deemed as lying with the Public Service Commission. No appeal was taken from the district court’s order of dismissal. Plaintiff thereafter sought relief from the commission but was advised that the commission had no jurisdiction to consider the validity or amount of the excise taxes.

On April 11, 1979, plaintiff filed the present action in Livingston County Circuit Court. The subject matter of the instant complaint was substantially identical to that of her earlier complaint. Plaintiff sought as relief a writ of mandamus ordering defendant to reconnect her telephone service. On April 30, 1979, defendant moved for summary and accelerated judgment on the same bases as earlier proffered in the circuit court. On May 14, 1979, the circuit court granted defendant’s motions and dismissed plaintiff’s complaint with prejudice. From this decision, plaintiff appeals as of right. GCR 1963, 806.1.

We first address the question of the propriety of the circuit court’s grant of accelerated judgment in favor of the defendant on the ground that it lacked jurisdiction of the subject matter.

With respect to actions against public utilities the Court in Valentine v Michigan Bell Telephone Co, 388 Mich 19, 30; 199 NW2d 182 (1972), stated:

"[A] claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.”

The resolution of the question presented is dependent on the characterization of plaintiff’s claim. Contrary to defendant’s contention that plaintiff’s claim constituted a direct attack on the validity of the taxes, we find that the gist of plaintiff’s complaint is the assertion that the defendant acted wrongfully in refusing to restore her telephone service. Such a complaint sets forth a claim sounding in tort. See Harbaugh v Citizens Telephone Co, 190 Mich 421; 157 NW 32 (1916), and Muskegon Agency, Inc v General Telephone Co of Michigan, 340 Mich 472; 65 NW2d 748 (1954). Accordingly, plaintiffs action was properly brought in circuit court. The trial judge incorrectly concluded that the circuit court lacked jurisdiction.

Our conclusion with respect to the jurisdictional issue, however, is not dispositive of the cause.

An examination of plaintiff’s complaint discloses that she seeks as relief a judgment of mandamus compelling defendant to restore her telephone service. While, in a proper case, a public service corporation may be subject to mandamus pursuant to the terms of GCR 1963, 714.1(2), Mahan v Michigan Telephone Co, 132 Mich 242, 248; 93 NW 629 (1903), 12 McQuillin, Municipal Corporations (3d ed, 1970), § 34.194, pp 386-387, we find that the present case is not an appropriate one.

Mandamus is an extraordinary remedy which may issue only under limited circumstances. Dettore v Brighton Twp, 58 Mich App 652, 655; 228 NW2d 508 (1975).

"The general principle which governs proceedings by mandamus is, that whatever can be dope without the employment of that extraordinary remedy, may not be done with it. It only lies when there is practically no other remedy.” Ex parte Rowland, 104 US 604, 617; 26 L Ed 861 (1882).

When there is a plain, direct and adequate alternative remedy, courts will not permit the use of a writ of mandamus. Coffin v Board of Education of Detroit, 114 Mich 342; 72 NW 156 (1897), Oakland County Board of Road Commissioners v State Highway Comm, 79 Mich App 505, 508-509; 261 NW2d 329 (1977).

Plaintiff here has an adequate alternative remedy. If she wants her telephone service restored while she continues to challenge the validity of the taxes, she can pay her entire telephone bill, including the amount attributable to the challenged taxes, and then institute an action or actions for their recovery. Because plaintiff here has an alternative remedy, the issuance of the writ is inappropriate. The circuit court’s grant of summary judgment was not reversibly erroneous.

Mandamus is not the proper remedy in this case. The circuit court’s judgment of dismissal is affirmed. Costs to appellee.

       The accumulated delinquent account was due not only to nonpayment of Federal and state taxes but was in addition due to nonpayment of the telephone service portion of plaintiffs account.

       After careful examination of the lower court file, we are unable to discern the reason underlying the circuit court’s order of dismissal of plaintiffs claim for injunctive relief.

       Plaintiff in her original complaint sought as relief compensatory and punitive damages. She, however, failed to appeal the district court’s judgment of dismissal. Furthermore, she has not requested such relief in the instant action. Accordingly, we do not address the issue of her right, if any, to such relief.

       Subsequent to taking this appeal, plaintiff tendered to defendant a security deposit of $100 and requested that her telephone service be reinstalled. Defendant accepted the deposit and reinstalled plaintiff’s service. As of August 9, 1979, plaintiff was receiving telephone service from the defendant. This state of affairs does not preclude this Court from considering the merits of plaintiff’s appeal.
      Plaintiff continues to refuse to pay the disputed taxes. Upon her outstanding balance reaching the amount of her security deposit, $100, it appears that her telephone service will again be disconnected. Due to the continuing pertinence of the issues raised, we have addressed and decided them.

       It appears from an examination of the circuit court file that summary judgment was granted pursuant to GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted. Summary judgment on this basis was improper. Plaintiff’s complaint does state a claim upon which relief can be granted. The sole requested relief, however, is inappropriate. In such a case, we find that accelerated judgment pursuant to GCR 1963, 116 is appropriate. See, generally, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed) (1979 Supp), p 140.


source: Caselaw Access Project

author: G. E. Bowles, J.

license: Public Domain

text:
    BECKER v BECKER
    Docket No. 46220.
    Submitted November 9, 1979, at Grand Rapids.
    Decided February 6, 1980.
    Sharon L. Becker was granted a divorce from David A. Becker, Barry Circuit Court, Hudson E. Deming, J. Custody of the parties’ minor daughter Stacy was granted to her father. Judgment was entered January 2, 1979, with an automatic review of custody to take place on June 8, 1979. At the June 8th hearing testimony was taken from the parties and other persons. At the conclusion of the hearing the court issued an opinion changing custody from father to mother. An order was entered accordingly. Defendant appeals, contending that the trial court findings were against the great weight of the evidence, that the established custodial environment of a child should not be changed and that his home is a more permanent family unit. Held:

    The Court of Appeals, upon the record made, is not persuaded that in the interval between January 2, 1979, and June 8, 1979, a permanent custodial environment had been established. A grant of custody to defendant would mean a change in custodial environment because he contemplated moving from his parents’ residence, where the child had stayed, and establishing his own home. The trial court did not abuse its discretion.
    Affirmed.
    1. Appeal and Error — Divorce — Child Custody — Best Interests — Evidence — Statutes.
    The established custodial environment of a child should not be changed absent clear and convincing evidence that it is in the best interest of the child (MCL 722.27[c]; MSA 25.312[7][c]).
    2. Appeal and Error — Divorce — Child Custody — De Novo Review — Friend of the Court Reports.
    The Court of Appeals considers Friend of the Court reports in weighing the evidence in its de novo review of divorce and child custody decisions.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation § 819 et seq.

    [2] 5 Am Jur 2d, Appeal and Error § 687.

      Garlington & Sluiter, for plaintiff.

      Varnum, Riddering, Wierengo & Christenson (by Dennis C. Kolenda and Barbara R. Etheridge), for defendant.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   G. E. Bowles, J.

On April 28, 1978, plaintiff filed a divorce action against defendant in Barry County Circuit Court. On May 12, 1978, plaintiff was granted temporary custody of the parties’ minor daughter, Stacy, born June 26, 1976. Following a contested trial in January 1979, the circuit judge granted custody of Stacy to her father. The judgment was entered January 2, 1979, with an automatic review of custody to take place on June 8, 1979. The trial judge requested and received two reports and recommendations from the Friend of the Court dated December 1978 and June 1979. Both recommended a grant of custody to the mother. At the June 8th hearing testimony was taken from the parties and other persons.

Testimony showed the following. Stacy was then living with her father’s parents. She was cared for by her paternal grandmother and by a Mrs. Elsie. Defendant, if granted custody, intended to move out of his parents’ house and establish his own home. His hours of employment were 6:15 a.m. to 3:45 p.m. The paternal grandmother was currently employed full-time. Defendant bowls Monday evenings. The grandmother cared for Stacy before transporting her to nursery school two days a week and to Mrs. Elsie’s the other three days. Defendant picked up Stacy in the afternoon and was responsible for her after-dinner activities, including snacks, bathing and reading. A nursery school teacher reported Stacy had improved in school progress. Mrs. Elsie also testified to improvement. Stacy’s mother discussed her home with two sons of a former marriage. She had a regular babysitter 20 years old, previously approved by the father. She further indicated that there was a close relationship between Stacy and her two sons. Plaintiff also reported a stabilization of her social life. Her boyfriend indicated that he was seeing her infrequently and did not stay overnight. Plaintiff attended a class one night a week, a second night was spent socially, and she had activity outside the home Saturday afternoon. Plaintiff is employed full-time earning approximately $12,500 a year and in addition she receives $40 weekly child support for the two sons of her former marriage. Plaintiff exercised visitation regularly while Stacy was in her father’s custody.

The trial judge reviewed the statutory criteria mandated by MCL 722.23; MSA 25.312(3). He found the parties were equally suitable custodians with respect to their love and affection for their child, their ability to provide Stacy with food, clothing and medical care, the permanence of their respective family units, moral fitness, mental and physical health, and that either parent would strive to see Stacy’s good home and school record continued.

He found Stacy of insufficient age to express a preference. Neither party requested that she be interviewed by the court. The judge also considered the child’s sex and the mother-daughter relationship as well as the desirability that she be with her half brothers as allowed by MCL 722.23(j); MSA 25.312(3)©. While commending the grandmother the trial judge expressed dissatisfaction with the father’s prospective arrangements which would include transportation of Stacy at an early hour to the paternal grandparents. He ordered that custody be given to the plaintiff.

Defendant claims that the trial court findings were against the great weight of the evidence. Defendant also argues that the court ignored the mandate of MCL 722.27(c); MSA 25.312(7)(c). This section provides in relevant part:

"The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

Defendant further claims that his home is a more permanent family unit. MCL 722.28; MSA 25.312(8) provides:

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or clear legal error on a major issue.”

Review is de novo but special consideration is given to a trial court’s findings. Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977). In weighing the evidence on review consideration is given to the report of the Friend of the Court. Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978).

Minor child Stacy had been in her mother’s custody except for the five-month interval between the time of the entry of the judgment of divorce and the automatic review of that grant of custody. The trial court’s provision at judgment for automatic review is significant. It indicates a cautious effort to take a long second look and review of custody in the light of the facts and circumstances then existing.

The Child Custody Act does evidence concern that a minor child not be shuffled back and forth between custodians. That is the persuasive reason for giving careful consideration to continuance of an established custodial environment in order to promote emotional stability of the child. Under the facts of this case, particularly in view of the automatic review which the trial judge provided for in the divorce judgment, it cannot be urged persuasively that in the interval a permanent custodial environment had been established. See Berman v Berman, 84 Mich App 740; 270 NW2d 680 (1978). Indeed, the trial judge noted that a grant of custody to defendant meant a change in the custodial environment since he contemplated moving out of his parents’ residence and establishing his own home. Under the record made, this Court finds that the trial court did not abuse its discretion.

Affirmed.


author: Danhof, C.J.

text:
    CANTWELL v CITY OF SOUTHFIELD
    Docket No. 45809.
    Submitted December 6, 1979, at Lansing.
    Decided February 6, 1980.
    John E. Cantwell and other officers of the Southfield Police Department brought an action against the City of Southfield and its firemen and policemen civil service commission requesting that the defendants be enjoined from certifying the results of a promotional examination and requesting the court to order the examination vacated, redesigned and rescheduled. The plaintiffs contended that the commission was illegally constituted at the time of the examination because the term of one of the members of the commission had expired but that member had continued to act as a commissioner because a replacement had not been appointed. The Oakland Circuit Court, James S. Thorburn, J., found that the commission was not properly constituted, ordered the appointment of a new commissioner within ten days, and ordered the examination to be regraded or a new examination given. Defendants appeal. Held:

    The commission was not illegally constituted at the time in question. The statute governing the creation of a firemen and policemen civil service commission provides that any commissioner shall serve a term of years and until his successor is appointed and qualified by the appointing authority.
    Reversed and remanded.
    Municipal Corporations — Officers — Civil Service Commission — Statutes.
    Officers holding over in their positions after their terms have expired or their authority vacated are still de facto officers and their acts as such are legal; a municipal policemen and firemen civil service commission was validly constituted during a period of time when the term of one of the three members had expired but a successor had not been appointed and the member in question continued to act as a commissioner (MCL 38.502; MSA 5.3352).

      References for Points in Headnote
    56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 241.
    63 Am Jur 2d, Public Officers and Employees §§ 157 et seq., 493, et seq.

      Leib & Leib, for plaintiffs.

      Sigmund A, Beras, City Attorney, and Robert J. Dotson, Assistant City Attorney, for defendants.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Danhof, C.J.

A number of officers of the South-field Police Department filed a complaint for superintending control after taking an examination for promotion to police sergeant. The complaint alleged, inter alia, that the Southfield Civil Service Commission was illegally constituted at the time the test was given and graded. It petitioned the Oakland County Circuit Court to enjoin defendants from certifying the results of the examination and to order the exam to be vacated, redesigned, and rescheduled. Defendants appeal as of right from the trial court’s finding that the Southfield Civil Service Commission was not a properly constituted commission when the test was given; the court’s order that the two commissioners select a third commissioner within ten days or the court would do so; and the court’s order that they regrade the examination, considering any appeals therefrom, or give a new exam. This Court granted defendants a stay of proceedings on August 14, 1979.

The examination was approved by Southfield Civil Service Commissioners John Sklar, Sidney Lantz, and Peter Borovich on April 4, 1978, and administered on May 15, 1978. The results were posted on May 22, 1978 (apparently only 13 of 58 applicants initially achieved a passing score of 70% or higher, adequate study material was not easily available, and no alternative examinations had been considered by the commission. Thus, the examination prompted many complaints from testees). Subsequently, 12 appeals were filed by candidates. When the commission received the appeal returns from the testing agency, it was discovered that a page from the list of source materials given applicants before the test had been omitted. The commission then hired an independent consulting firm to review the appeals and the testing agency’s answers. After receiving the consulting firm’s report, the commission made significant scoring adjustments. Thereafter, all plaintiffs except Peter Ponzetti passed. In early April 1979, the commission was prepared to certify the results. However, on April 4, 1979, plaintiffs obtained an ex parte preliminary injunction enjoining defendants from certifying the examination results. Plaintiffs filed their complaint for superintending control the next day.

Plaintiffs’ challenge to the examination and its grading centers upon the status of commissioner Peter Borovich: his term as commissioner expired on April 28, 1978, however, he continued to act as a commissioner throughout the testing and grading process because the other two commissioners could not agree on a replacement.

Plaintiffs argue, and the trial court agreed, that the commissioners’ actions regarding the administration and grading of the examination must be held for naught because, due to the expiration of Borovich’s term, the Southfield Civil Service Commission was not legally constituted.

Defendants argue that a commissioner can validly serve beyond the expiration of his regular term, until such time as a successor is appointed and qualified.

Resolution of this question depends upon our interpretation of MCL 38.502; MSA 5.3352. It provides, in relevant part:

"The civil service commission shall consist of 3 members, 1 of whom shall be appointed by the principal elected officer of the city, village or municipality with the approval of the legislative body; and he shall serve for a period of 6 years from the date of his appointment. The second member of the commission shall be selected by the paid members of the fire and/or police department and he shall serve for a period of 4 years from the date of his appointment; a majority vote of the members of the fire and/or police department shall be necessary to select such member. The third member of the commission shall be selected by the aforesaid members of the commission and he shall serve for a period of 2 years from the date of his appointment. Thereafter all appointments shall be made for a period of 6 years each; each commissioner to serve until his successor is appointed and qualiñed by the appointing power herein-before designated. ” (Emphasis added.)

The emphasized directive of the Legislature that each commissioner shall serve until his successor is appointed and qualified must be understood in the light of the potential for an impasse in the selection process. The local legislative body may decline to approve the principal officer’s appointment, no single candidate may attract the support of the majority of the members of the police and fire departments, or the two members of the commission may fail to agree on the third member. Any such impasse could impair the functioning of a civil service commission.

We hold that the Legislature intended a commissioner to continue to serve, even though his regular term was expired, until such time as a successor is appointed and qualified. Therefore, the Southfield Civil Service Commission was validly constituted during the testing procedures, even though a successor for Borovich was not appointed until over a year after his term expired. Our conclusion is supported by contrasting the above section with MCL 38.504; MSA 5.3354. The latter section provides that a new commissioner shall be appointed within ten days where a commissioner ceases to be a member by virtue of death, removal, or other cause. In the situations covered by § 4, the incumbent is no longer available for service, thus, the Legislature provided a time limit for the successor’s appointment. On the other hand, a commissioner whose term has expired remains available for service. As a result, the Legislature provided that such a commissioner could serve until the appointing body reaches agreement. The fact that the Legislature expressly provided a time limit in § 4 yet did not in § 2 shows that the Legislature considered, and rejected, time limitations for appointments in § 2.

This is consistent with the long standing rule that "officers holding over after their term has expired or their authority vacated still are de facto officers, and their acts as such are legal”. Case v Liquor Control Comm, 314 Mich 632, 642; 23 NW2d 109 (1946). See also, Greyhound Corp v Public Service Comm, 360 Mich 578, 589; 104 NW2d 395 (1960).

We hold that the trial court erred when it found that the Southfield Civil Service Commission was not legally constituted during the period in which the examination was administered and graded. Therefore, we reverse the trial court’s judgment and remand for proceedings not inconsistent with this opinion.

Reversed and remanded. No costs, a public question involved.


author: M. J. Kelly, J.

text:
    JOHNSON v HARNISCHFEGER CORPORATION (ON REMAND)
    Docket No. 46342.
    Submitted July 26, 1979, at Grand Rapids.
    Decided February 6, 1980.
    Leave to appeal applied for.
    Carlton P. Johnson, qn employee of Harnischfeger Corporation, injured his right knee and was paid total disability benefits for 500 weeks. After expiration of those benefits Johnson petitioned for further benefits, alleging that he had developed pain in his left knee abogt two months prior to the expiration of benefits for the injured right knee. He sought compensation for permanent and total disability for loss of industrial use of both legs. The hearing referee awarded benefits, and the Worker’s Compensation Appeal Board reversed, finding that Johnson had failed to present sufficient evidence of such loss of use and that he had failed to prove permanent and total disability within the statutory time period, which is "not less than 30 days before the expiration of 500 weeks from the date of injury”. Johnson appealed, and the Court of Appeals affirmed in an unpublished per curiam opinion. Johnson applied to the Supreme Court for leave to appeal and that court, in lieu of granting leave to appeal, vacated the Court of Appeals decision and remanded the case to the Court of Appeals for consideration of the constructional and constitutional issues raised by Johnson in regard to the statutory time requirement for determinatipn of permanent and total disability. 406 Mich 1002 (1979). Held:

    The statutory scheme which requires determination not less than 30 days before 500 weeks from the date of injury of the loss of industrial use of the arms or legs but does not impose a time limitation upon such a determination of other types of permanent and total disability has no rational basis and, therefore, constitutes a denial of equal protection. In addition, the statute violates due process of law because it operates as a statute of limitations which deprives employees whose industrial logs of use does not arise Until after the period of 500 weeks minus 30 days of their statutory and common law remedies before the right to bring suit is discovered.

      References for Points in Headnotes
    [1, 2] 16 Am Jur 2d, Constitutional Law § 212 et seq.

    73 Am Jur 2d, Statutes §§ 103, 153.
    [2] 29 Am Jur 2d, Evidence § 127.
    [3] 73 Am Jur 2d, Statutes § 194.
    [4, 5] 81 Am Jur 2d, Workmen’s Compensation § 17.
    82 Am Jur 2d, Workmen’s Compensation §§ 350, 351.
    [5] 81 Am Jur 2d, Workmen’s Compensation § 16.
    ,16] 73 Am Jur 2d, Statutes §§ 181, 185.

      Reverséd and remanded.
    Í. Constitutional LAW — Statutes — Equal Protection — Due Process.
    Socioeconomic legislation should be upheld in the face of an equal protection or due process challenge where the legislation is supported by any state of facts either known of which could reasonably be assumed,- even though such facts may be debatable.
    2. Constitutional Law — Statutes — Equal Protection.
    A statute is presumed to be constitutional; a party challenging a statute on equal protection grounds assumes the burden of proving that statutory distinctions between classes of persons lack a reasonable relation to a legitimate government interest.
    3. Statutes — Construction of Statutes.
    Judicial construction of a statute is inappropriate where the language of the statute is clear and unambiguous and clearly reflects the legislative intent.
    4. Workmen’s Compensation — Industrial Use of Limbs — Statutes — Equal Protection.
    A statutory provision which imposes a limitation upon the time in which a determination of total and permanent loss of industrial use of the limbs must be made in order for the claimant to be eligible for worker’s compensation benefits, while no such limitation period applies to other types of total and permanent disability, has no rational basis and therefore constitutes a denial of equal protection to those claiming permanent and total loss of industrial use of limbs (MCL 418.361[2][g]; MSA 17.237[361][2][g]).
    5. Workmen’s Compensation — Industrial Use of Limbs — Stat-. utes — Due Process.
    A statute which provides that a determination of total and permanent disability due to the industrial loss of use of the arms or legs must be made within 500 weeks less 30 days of the date of the injury causing such loss of use deprives Claimants whose loss of úse Occurs after that time of their statutory aiid common law remedies before their right to bring suit is discovered and is therefore violative of due process of law (MCL 418.361[2][g]; MSA 17.237[361][2][g]).
    6. Statutes — Abrogation of Cause op Action.
    A statute which abolishes the right to sue before the cause of action arises is sustainable only if it is intended to be an abrogation of a common law cause of action.

      Green, Renner, Weisse, Rettig, Rademacher & Clark, for plaintiff.

      Bridges & Collins (by Paul A. Peterson), for Harnischfeger Corporation and Employers Insurance of Wausau.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph M. Binno, Assistant Attorney General, for the Second Injury Fund.
    Before: V. J. Brennan, P.J., and R. B. Burns and M. J. Kelly, JJ.
   On Remand

M. J. Kelly, J.

Plaintiff was totally disabled by an injury to his right knee on December 1, 1964, and his employer paid compensation through July 1, 1974, 500 weeks after the date of injury. In August, 1974, plaintiff filed a petition for hearing, alleging loss of industrial use of both legs on May 1, 1974. At the hearing plaintiff testified that he first had pain in his left knee in May, 1974. Dr. James W. Lyons, plaintiff’s orthopedic surgeon, testified by deposition that plaintiff did not complain of pain in his left knee when he was examined in April, 1974; it was not until the doctor saw plaintiff on September 17, 1974, that plaintiff complained of pain in his left knee.

Relying primarily on the testimony of Dr. Lyons, the hearing referee found that plaintiff was permanently and totally disabled as of September 17, 1974, because of the loss of industrial use of both legs. Defendants were ordered to pay benefits from July 2, 1974, when plaintiffs previous benefits had ceased, until further order of the Bureau of Workmen’s Compensation.

All parties appealed; defendants contested the finding of permanent and total disability, and plaintiff contested the date of total and permanent disability. The Worker’s Compensation Appeal Board specifically considered MCL 418.361(2)(g); MSA 17.237(361)(2)(g), which provides:

"(2) Total and permanent disability, compensation for which is provided in section 351 means:

"(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.”

The board then employed the test set down by the Supreme Court in Burke v Ontonagon County Road Comm, 391 Mich 103; 214 NW2d 797 (1974), ánd after reviewing plaintiffs testimony, concluded that it contained insufficient evidence that plaintiff hád lost the industrial use of both legs. Relying oh Dr. Lyons’ testimony, the board also concluded that plaintiff had failed to prove permanent and total disability "within the period provided by Subsection (2)(g)”. It therefore reversed the referee and denied further benefits. This Court granted leave to appeal that order and in an unpublished per curiam opinion [Docket No. 77-521, January 4, 1979] found no error in the appeal board’s conclusion that plaintiff had failed to meet his búrden of proof under the Burke test.

Plaintiff asserted that the distinction drawn by the Legislature between the first six classes of total and permanent disability, § 361(2) (a)-(f), which are not subject to any statute of limitations, and the seventh, loss of industrial use of two limbs, § 361(2)(g), violates equal protection. Because we affirmed the factual findings of the WCAB, we did not address this constitutional question. This cause is now remanded here, on order of the Supreme Court, for "consideration of the constructional and Constitutional issues raised by plaintiff”. 406 Mich 1002 (1979). We assume that our affirmance of the factual determination of the appeal board is overruled sub silentio. We had concluded that the "[plaintiff’s proofs, which were taken at face value by the appeal board, merely establish that ambulation has been made more difficult for plaintiff as a result of his accident. They do not indicate that his present condition is functionally equivalent to phsyical loss of use of his legs.” The Supreme Court must have found that conclusion incorrect and intended to overrule it, else why would it issue its order requiring consideration of the constitutional issue if the disability issue already foreclosed the plaintiff from any possibility of prevailing?

Subsection (2)(g), supra, establishes the time frame for a determination of permanency when an injured employee claims permanent and total loss of industrial use of the specified limbs: "* * * such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.” Plaintiff submits that construed as a statute of limitations, i.e., that permanency must be determined within 500 weeks less 30 days, the provision constitutes a denial of equal protection under even the minimal rationality standard of review.

The Supreme Court, in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 540; 273 NW2d 829 (1979), recently reaffirmed the position taken in Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), regarding the proper judicial approach when confronted with an equal protection or due process challenge to socioeconomic legislation:

" '[I]n the face of a due process or equal protection challenge, "where the legislative judgment is drawn in question”, a court’s inquiry "must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 788; 82 L Ed 1234 (1938). * * * [W]here the legislative judgment is supported by "any state of facts either known or which could reasonably be assumed”, although such facts may be "debatable”, the legislative judgment must be accepted. Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936).’ ”

Various sections of the Worker’s Disability Compensation Act, included within this socioeconomic legislative category, have previously been analyzed under the "rational basis” test. Kunde v Teesdale Lumber Co, 55 Mich App 546; 223 NW2d 67 (1974), Verberg v Simplicity Pattern Co, 357 Mich 636; 99 NW2d 508 (1959).

The legislation in question comes clothed in a presumption of constitutionality; plaintiff assumes the burden of proving that the distinctions embodied in § 361(2) (a)-(g) lack a reasonable relation to a legitimate government interest. Cruz v Chevrolet Grey Iron Div of General Motors Corp, 398 Mich 117; 247 NW2d 764 (1976), Kunde, supra.

The preliminary question is whether the statute is clear and unambiguous, since judicial construction is inappropriate when the language clearly reflects the legislative intent. Oakland Prosecutor v 46th District Judge, 76 Mich App 318; 256 NW2d 776 (1977), Adrian Mobile Home Park v City of Adrian, 94 Mich App 194; 288 NW2d 402 (1979). Both parties here present equal protection arguments based upon an interpretation of the challenged language as a statute of limitations. We agree that the language is certain; therefore, we must sustain the different treatment accorded § 361(2)(g) claimants or sever that provision creating a statute of limitations if deemed constitutionally offensive. Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich 60; 38 NW2d 77 (1949).

The only basis suggested by defendants for the special § 361(2)(g) statutory requirement is that it permits employers and insurance carriers to avoid stale claims. Defendants argue that the other categories of total and permanent disability are more readily apparent than loss of industrial use and thus have built-in statutes of limitation. An examination of the other listed § 361 categories, however, reveals inclusion of several other medical conditions potentially involving long-term development: total and permanent loss of sight of both eyes, permanent and complete paralysis of both legs or both arms or of one leg and one arm, incurable insanity or imbecility. In light of other potential long-term developing total and permanent disabilities we are not persuaded by defendants’ argument that the first six categories of total and permanent disability are more clearly apparent sooner after the industrial injury, event or disease occurs, thereby providing the employer with notice of possible total and permanent consequences to follow. In the absence of a rational basis for the different treatment accorded claimants whose disability is defined under subsection (g), we find that imposition of a statute of limitations on that class, when employees in categories (a)-(f) are not so restricted, constitutes a denial of equal protection.

Plaintiffs single challenge to § 361(2)(g) is grounded on equal protection analysis, but we believe the statute of limitations included therein is constitutionally infirm on due process grounds as well. To deprive employees whose industrial loss of use does not arise until after 500 weeks minus 30 days of both their statutory and common law remedies before the right to bring suit is discovered would violate due process of law. Dyke v Richard, 390 Mich 739, 746-747; 213 NW2d 185 (1973). A statute which abolishes the right to sue before the cause of action arises is sustainable only if intended as an abrogation of a common law cause of action. Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978). Such analysis is unreasonable in the instant case, as § 361(2)(g) was enacted for the purpose of defining a formerly unrecognized class of claimants. It is highly likely that when the Legislature added § 361(2)(g) to the act, defining a formerly unrecognized class of claimants, it included the statute of limitations as a means of confining the class to claimants with injuries that occurred within the last 500 weeks less 30 days and those injured in the future, thereby precluding resurrection of ancient claims by giving only prospective application to that section of the act. See Clark v Chrysler Corp, 377 Mich 140, 148; 139 NW2d 714 (1966), and Sanders v General Motors Corp, 80 Mich App 190, 194 fn 5; 263 NW2d 329 (1977). If the language was intended as a time limitation for the specific purpose of denying retroactivity, its continued presence is unnecessary. Directed by the Supreme Court to resolve the constitutional issue presented, we find the statute of limitations imposed upon § 361(2)(g) claimants violative of both due process and equal protection guarantees.

In the instant case the WCAB found that plaintiff had failed to demonstrate total and permanent disability within the statutory period. We therefore remand this case to the WCAB for a determination consistent with this opinion and the standards set forth in Burke, supra, and Martin v Ford Motor Co, 401 Mich 607; 258 NW2d 465 (1977). To avoid the possibility of any confusion as to whether or not the appeal board considered all of plaintiff’s proofs, including the testimony of Dr. Lyons on the question of permanent and total loss of industrial use of both legs, we instruct the board to do so anew.

Reversed and remanded.

       MCL 418.361(2); MSA 17.237(361X2) states:
      "(2) Total and permanent disability, compensation for which is provided in section 351 means:
      "(a) Total and permament loss of sight of both eyes.
      "(b) Loss of both legs or both feet at or above the ankle.
      "(c) Loss of both arms or both hands at or above the wrist.
      "(d) Loss of any 2 of the members or faculties enumerated in (a), (b) or (c).
      "(e) Permanent and complete paralysis of both legs or both arms or of 1 leg and 1 arm.
      "(f) Incurable insanity or imbecility.
      "(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury. (Emphasis added.)

       In reaching its conclusion the board relied upon the test enunciated in Burke v Ontonagon, supra, at 114, which states:
      "There is permanent and total loss of industrial use of both legs where, inter alia,

      "1. An employment-related injury in one or both legs causes pain or other condition that prevents use of both legs in industry.
      "2. The use of one or both legs, whether or not injured, triggers an employment-related injury or malady in any part of the body, including one or both legs, that causes pain or other condition that prevents use of both legs in industry.”

       Total and permanent loss of sight of both eyes may result from injury or disease that progresses gradually, as in the case of cataracts and lens removal. Heat-ray cataracts, for example, are caused by long continued exposure to high temperatures. In the case of electric cataracts, the latent period from the date of the electrical injury to formation of cataracts has been reported to be as long as 11 years. System of Ophthalmology, Vol. 14, pp 828-835. The Michigan Supreme Court, considering the relationship of this specific type of injury to the Workmen’s Compensation Act, stated: "the surgical removal of the natural lens made necessary by an injury arising out of and in the course of claimant’s employment is loss of an eye within the meaning of the amended statute.” Lindsay v Glennie Industries, Inc, 379 Mich 573, 578; 153 NW2d 642 (1967).

       Paralysis could also develop over a long period of time following a specific injury or contraction of an occupational disease. Lead paralysis, caused by lead poisoning, obviously entails a potentially lengthy progression, depending upon the degree and frequency of exposure. Medical literature documents, through case histories, that severe muscle atrophy may first appear as late as 16 years after occupational exposure to lead. Medical treatment with calcium often halts further deterioration, but the existing paralysis is generally irreversible. Campbell, Williams & Barltrop, Motor Neurone Disease and Exposure to Lead, 33 J Neurol Neurosurg Psychiat 877-885 (1970).
      Manganese poisoning is an occupational disease which affects the central nervous sytem. Medical studies of this disease reveal that symptoms may first appear as late as 25 years after the onset of exposure. Chronic manganese poisoning results in permanent disabilities most frequently involving use of the lower limbs. Naby & Hassanein, Neuropsychiatric Manifestations of Chronic Manganese Poisoning, 28 J Neurol Neurosurg Psychiat 282 (1965).

       It is also common knowledge that mental disease may become totally and permanently disabling as a result of progressive deterioration. Manganese poisoning is sometimes referred to as "manganic madness”, due to commonly reported compulsive behavior including singing, dancing and fighting. Miners inflicted with the disease often have "persisting neurological deficit despite removal from the mine.” Lauria, Joselow & Browder, The Human Toxicity of Certain Trace Elements, 76 Annals of Internal Medicine 307-319 (1972).

       In Clark, supra, the Supreme Court did not determine the constitutionality of this construction.


author: Per Curiam.

text:
    PEOPLE v JONES
    Docket No. 78-2126.
    Submitted November 8, 1979, at Lansing.
    Decided February 6, 1980.
    James L. Jones was convicted of second-degree murder, Jackson Circuit Court, Charles J. Falahee, J. The Court of Appeals’ subsequent affirmance of defendant’s conviction (Docket No. 20574, decided September 22, 1976 [unreported]) was summarily reversed by the Supreme Court, People v Jones, 400 Mich 810 (1977). Defendant was then retried and reconvicted by a different jury in Jackson Circuit Court, Russell E. Noble, J. Defendant and a Ms. Bryson were lovemaking on a private residential driveway. Howard Stoker exited from a nearby house and approached the car on two occasions to inquire if anything was wrong. After the second approach, according to Ms. Bryson, defendant brandished a pistol and told her that if Stoker came back again he would "blow his ass off’. The car became stuck in the snow and Ms. Bryson went into the Stoker house to call a wrecker. Once in the house, she told the occupants that defendant was armed and dangerous and that they should call the police. After a few minutes defendant came to the door. Stoker answered. There was a gunshot and Stoker was killed. Defendant testified he made sure the gun was loaded and that he thrust the gun inside intending to frighten the person behind the door into letting him in when the gun accidentally discharged. Defendant appeals. On appeal defendant alleges that the trial court erred reversibly when it improperly allowed a ballistics expert to testify about powder burns on the skin of the deceased victim and that this error was prejudicial to him with regard to the sufficiency of the evidence of malice proffered at trial. Held:

    The trial court abused its discretion in admitting the testimony on powder burns. The police detective who testified was not an expert witness. He was insufficiently trained and unqualified. However, the error does not warrant reversal of defendant’s conviction. Malice may be inferred from behavior and the use of a deadly weapon. In view of defendant’s threat to "blow his ass off’, insuring that his gun was loaded, kicking the door and thrusting the gun inside, the jury could properly have found express malice in defendant’s statement of intent and inferences of malice could also have been properly drawn from the defendant’s behavior and use of a deadly weapon. Although the trial court abused its discretion in admitting the testimony of the ballistics officer as to the victim’s contact wound, the error was harmless.

      References for Points in Headnotes
    [1] 31 Am Jur 2d, Expert and Opinion Evidence § 31.
    [2] 40 Am Jur 2d, Homicide § 263 et seq.

    52 Am Jur 2d, Malice §§ 5, 6.

      Affirmed.
    1. Witnesses — Expert Witnesses — Qualifications — Judge’s Discretion — Area of Expertise — Appeal and Error.
    Admission or exclusion of expert testimony is within a trial court’s discretion and exercise of that discretion will not be reversed except where it is clearly abused; in its exercise of discretion, the trial court must preliminarily determine that the witness qualifies as an expert in the subject matter upon which he intends to testify and his testimony must be limited to his area of expertise.
    2. Homicide — Malice — Intent to Kill — Tendency of Behavior — Jury — Use of Deadly Weapon — Inferences.
    Malice or intent to kill may be inferred by the trier of fact where the natural tendency of a defendant’s behavior is to cause death or great bodily harm; malice may also be inferred where a deadly weapon is used in the perpetration of a killing.

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

      Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey, JJ.

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

   Per Curiam.

Defendant was tried and convicted of second-degree murder, MCL 750.317; MSA 28.549, on January 25, 1974, by a Jackson County Circuit Court jury. This Court’s subsequent, unpublished affirmance of defendant’s conviction was summarily reversed by the Supreme Court, People v Jones, 400 Mich 810 (1977). Defendant was then retried and reconvicted by another Jackson County Circuit Court jury. He was sentenced to imprisonment for 60 to 90 years, with credit given for time previously served. From this conviction and sentence, defendant appeals as of right under GCR 1963, 806.1.

A survey of the facts is in order before turning to the various allegations of error defendant has raised. Defendant and a female acquaintance, a Ms. Bryson, were out for a drive in rural Jackson County on the night of December 1, 1972. After a time, they left the highway and pulled into the driveway of a residence in order to engage in lovemaking. A young man, one Howard Stoker, the victim herein, exited from a nearby house, approached the car and inquired if anything was wrong. Ms. Bryson indicated there was not. However, later, upon Stoker’s return, in an exchange unknown to the defendant, Ms. Bryson told Stoker to call the police. Afterwards, according to Ms. Bryson, defendant brandished a pistol and told her that if Stoker came back again, he would "blow his ass off’.

An argument between defendant and Bryson ensued. As a result, defendant attempted to move his car but became stuck in heavy snow and ice at the end of the driveway. Ms. Bryson then convinced defendant that he should allow her to go to the house to call a wrecker. Once in the house, however, Ms. Bryson told the occupants that defendant was armed and dangerous and that they should call the police. Howard Stoker then locked the door and ordered everyone into the basement, including Ms. Bryson. The victim’s girlfriend did not go to the basement as ordered however. Instead, she secreted herself in the living room and overheard the events which followed.

After some minutes, defendant came to the door and demanded admission. The victim’s girlfriend testified that a brief conversation through the doors followed. Then, she heard the front door open, a scuffle, a thud and then a gunshot.

The defendant testified in his own behalf. He stated that before approaching the house, he checked as to whether the gun was loaded. When he found out that it was, he put it in his jacket pocket. Then, when those in the house refused to allow him to enter, he kicked the door. It opened slightly and he thrust the gun inside intending to frighten the person behind the door into letting him in. At this point, defendant related, the gun accidentally discharged.

Defendant raises a myriad of allegations in this appeal, only one of which warrants extended discussion. This allegation is that the trial court reversibly erred when it improperly allowed a ballistics expert to testify about powder burns on the skin of the deceased victim. Defendant argues that this error was highly prejudicial to him as it involved the crucial issue of the nature of the victim’s wound and its effect upon the sufficiency of the evidence of malice proffered at trial. Specifically, if the defendant in fact put the gun to Stoker’s neck, the jury could have inferred malice. However, if the defendant thrust the gun into the door and it accidentally discharged at some distance from the victim, the evidence of malice presented would be insufficient to justify defendant’s second-degree murder conviction.

It is within the trial court’s discretion to admit or exclude expert testimony and an exercise of that discretion will not be reversed except where it is clearly abused, People v Hernandez, 84 Mich App 1, 18; 269 NW2d 322 (1978). In its exercise of discretion, the trial court must preliminarily determine that the witness qualifies as an expert in the subject matter upon which he intends to testify. Moreover, the expert’s opinion testimony must be limited to his area of expertise. People v Zimmerman, 385 Mich 417; 189 NW2d 259 (1971), O’Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971).

We find that the instant trial court abused its discretion in this regard. The police detective the trial court allowed to testify as an expert on powder burns and contact wounds indicated on voir dire that: he had at most several hours of training concerning powder burns and skin tests; he had conducted no controlled firing of projectiles into skin tissue; he had used only optical methods to test for powder residue; and, finally, he had conducted no chemical tests for powder burns. In view of the foregoing, we agree with defendant’s allegation that the trial court erred in allowing this witness to testify as an expert witness.

We disagree with defendant’s conclusion that the error warrants reversal, however. We find that sufficient evidence of malice existed to support the conviction even absent this erroneously admitted testimony. Malice or intent to kill may be inferred by the trier of fact when the natural tendency of the defendant’s behavior is to cause death or great bodily harm. People v Davis, 76 Mich App 187, 189; 256 NW2d 576 (1977). Malice may also be inferred where a deadly weapon is used in the perpetration of the killing. People v Martin, 392 Mich 553, 562; 221 NW2d 336 (1974), People v Juniel, 62 Mich App 529, 537; 233 NW2d 635 (1975).

In referring to the victim on one occasion, the defendant told his girlfriend that he would "blow his ass off”. Subsequent to making this statement, the defendant approached the victim’s house while insuring that his gun was loaded. At this point, according to the defendant’s testimony, he kicked the door of the house slightly ajar and thrust the gun inside. The gun discharged, killing the victim.

In view of the foregoing, we hold that the jury could properly have found express evidence of malice in defendant’s statement of intent. Moreover, inferences of malice could also properly have been drawn by the trier of fact in that the natural tendency of defendant’s behavior was to cause death or great bodily harm and defendant used a deadly weapon in the perpetration of a killing. Accordingly, we hold that, although the trial court did abuse its discretion in admitting the testimony of the ballistics officer as to the victim’s contact wound, this error was harmless.

Affirmed.


text:
    PEOPLE v KILLARNEY
    Docket No. 78-2326.
    Submitted November 8, 1979, at Lansing.
    Decided February 6, 1980.
    Thomas J. Killárney was charged with felonious assault. At trial the defendant moved for a directed verdict. The Jadksoñ Circuit Court, Gordon W. Britten, J,, granted the motion on the ground that the prosecution had failed to show that the defendant’s action had placed anyone in fear. The proseoution appeals. Held:

    It was not necessary to establish that the defendant’s actions had placed anyone in fear in order to establish that ah assault took place. The trial court erred when it granted the defendant’s motion for a directed verdict. However, retrial of the defendant is barred by the constitutional prohibitions against double jeopardy since the trial court’s decision was a determination of guilt or innocence on the fadts of the case.
    Reversed, but retrial barfed because of double jeopardy considerations.
    1. Assault and Battery — Elements of Crime.
    The crime of assault does not necessarily include as an element a requirement that the victim be put in reasonable fear of immediate harm.
    2. Assault and Battery — Intentional Attempt TO Harm — Reasonable Fear of Battery.
    A criminal assault may occur where there is ah intentional attempt or offer to harm another, together with the present ability to act; felonious assault may be established by the showing of an intent by a defendant to put a Victim in reasonable fear or apprehension of an immediate battery.
    References for Points in Headnotes
    [1] 6 Am Jur 2d, Assault and Battery § 4.
    [2] 6 Am Jur 2d, Assault and Battery §§ 2-6, 10, 13, 22, 32, 49.
    [3] 21 Am Jur 2d, Criminal Law §§ 165, 2l4 et Seq.

    58 Am Jur 2d, New Trial § 9.

      3. Constitutional Law —r Prosecutor’s Appeal — Double Jeopardy — Dismissal of Charge? — Retrial — Appeal and Error.
    Retrial of a defendant after a successful appeal by a prosecutor is barred by the double jeopardy clauses of the Federal and state constitutions where the appeal concerns the dismissal, during trial, by the trial court of charges on the basis of the trial court’s evaluation of the evidence and its legal sufficiency.

      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.

      Susskind, Hedstrom & Falahee, P.C., for defendant on appeal.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey, JJ.

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

   Per Curiam.

The people appeal as of right from an order of the Jackson Circuit Court granting defendant’s motion for directed verdict in a prosecution for felonious assault, contrary to MCL 750.82; MSA 28.277.

The court granted the motion on the ground that the people had failed to show that the defendant’s actions had placed anyone in fear. While this element may suffice to establish that an assault took place, it is not a necessary element of assault. People v Sanford, 402 Mich 460; 265 NW2d 1 (1978). A criminal assault may occur where there is an intentional attempt or offer to harm another, together with the present ability to act. People v Sanford, supra, at 477, People v Carlson, 160 Mich 426; 125 NW 361 (1910), see People v Syakovich, 32 Mich App 356; 188 NW2d 642 (1971), People v Curtis Williams, 57 Mich App 612; 226 NW2d 584 (1975). Moreover, felonious assault may be established by the showing of an intent by the defendant to put the victim in reasonable fear or apprehension of an immediate battery. See People v Joeseype Johnson, 407 Mich 196; 284 NW2d 718 (1979).

The trial court erred when it granted defendant’s motion for directed verdict. However, defendant may not be retried for this offense. The trial court’s erroneous decision was a determination of guilt or innocence on the facts of the case. Therefore, retrial is barred by the constitutional prohibition against placing defendants in double jeopardy. People v Smith (On Rehearing), 89 Mich App 478; 280 NW2d 862 (1979), Sanabria v United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978), Fong Foo v United States, 369 US 141; 82 S Ct 671; 7 L Ed 2d 629 (1962), United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978), People v Killingsworth, 80 Mich App 45; 263 NW2d 278 (1977).

Thus, we hold that the trial court erred, but that the double jeopardy provisions of the Michigan and Federal Constitutions prevent the retrial of defendant.


text:
    METROPOLITAN LIFE INSURANCE COMPANY v FOOTE
    Docket Nos. 43239, 43342.
    Submitted November 7, 1979, at Lansing.
    Decided February 6, 1980.
    Leave to appeal applied for.
    Metropolitan Life Insurance Company held a mortgage in the amount of $1,365,000 covering four separate parcels of commercial property pledged as security by Les Foote, Inc. A second mortgage on this property was given by the Foote Corporation to Octagon Financial. The property was subsequently conveyed by Les Foote, Inc. to Lester C. Foote, who in turn conveyed the property to Lester C. Foote Trust No. 1, of which Donald L. Foote was trustee. Metropolitan brought an action to foreclose the first mortgage on the basis of delinquencies in payments of principal and interest, naming Donald Foote, as trustee of the Lester C. Foote Trust No. 1, and Octagon Financial as defendants. Plaintiff moved for summary judgment. The Ingham Circuit Court, Thomas L. Brown, J., granted plaintiffs motion for summary judgment. The trial court subsequently entered an order denying defendant’s motion to amend the order of summary judgment of foreclosure and entered an order of confirmation of sale. Defendants appealed separately and the appeals were consolidated for consideration. Defendants argue on appeal that the trial court erred in permitting the mortgaged property to be sold en masse rather than by parcels. Held:

    1. The statutory provision providing for sale by parcels at foreclosure sales is intended to protect the right to redeem and is thus mandatory in nature in the absence of other circumstances. A party who has waived his right to redeem prior to the foreclosure and for valuable consideration cannot object to the fact that the sale was not made in parcels.
    2. Where a mortgage instrument provides in plain and unambiguous language that the mortgagee may, at its option, require that the property at a foreclosure sale be sold en masse, and where it is found that the mortgage instrument was an arm’s length agreement and that the mortgagee did not act in bad faith in exercising its option to sell the property en masse, the contractual provision agreed to by the parties does not fail on the basis that it is contrary to public policy. The statutory provision providing for sale by parcels is designed to protect the redemption rights in those instances where no other provision for a foreclosure sale is specified by the parties.

      References for Points in Headnotes
    [1, 2] 55 Am Jur 2d, Mortgages § 649 et seq.

    Estoppel of or waiver by parties or participants regarding irregularities in foreclosure sale. 2 ALR2d 78.

      Affirmed.
    1. Mortgages — Sale as Separate Parcels — Purpose of Statute — Waiver of Statutory Rights — Statutes.
    The statutory provision providing for sale by parcels at a foreclosure sale is mandatory in nature, absent other circumstances, so as to protect the right of redemption; however, where a party waives in advance for valuable consideration the right to redeem, that party cannot object to the fact that the sale was not made in parcels (MCL 600.3165; MSA 27A.3165).
    2. Mortgages — Sale as Separate Parcels — Waiver by Agreement.
    A mortgaged property made up of separate parcels may be sold en masse where the mortgage instrument is an arm’s length agreement which in plain and unambiguous language provides that upon foreclosure the mortgaged property can, at the option of the mortgagee, be sold en masse and there is no evidence that the mortgagee acted in bad faith in exercising its option to sell the property en masse.

      Dickinson, Wright, McKean, Cudlip & Moon (by Judson Werbelow and Gregory L. McClelland), for plaintiff.

      Fraser, Trebilcock, Davis & Foster (by Douglas J. Austin and Darrell A. Lindman), for defendant Donald Foote, Trustee of the Lester C. Foote Trust No. 1.

      Blackburn & Backus, for defendant Octagon Financial.
    Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey, JJ.

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

   Per Curiam.

Defendants appeal by right from a grant of plaintiffs motion for summary judgment of foreclosure made September 21, 1978, an order entered on January 8, 1979, denying a motion to amend the summary judgment of foreclosure, and an order of confirmation of sale entered on January 24, 1979.

On September 20, 1968, Les Foote, Inc. granted Metropolitan Life Insurance Company (hereinafter Metropolitan), a New York corporation, a mortgage in the amount of $1,365,000 as security for an obligation. The mortgage incumbered four separate parcels of property in Lansing, each of which had a commercial building constructed on it. On October 16, 1973, a second mortgage on this property was granted to Octagon Financial (Octagon), a Michigan limited partnership.

On December 31, 1975, Les Foote, Inc. conveyed the aforesaid encumbered property to Lester C. Foote. On January 20, 1976, Lester C. Foote conveyed the property to the Lester C. Foote Trust No. 1, of which Donald L. Foote was trustee.

On February 23, 1978, Metropolitan filed an action in Ingham County Circuit Court to foreclose the mortgage, alleging that no mortgage installment payments on the principal had been made since August 3, 1977, and no interest payments had been made since December 8, 1977. By reason of an acceleration clause, the entire amount owed on the mortgage became due. Donald L. Foote and Octagon were named as defendants in this suit.

On March 2, 1978, the trial court entered an order appointing a receiver for the mortgaged property. The defendants were enjoined from interfering with the receiver in the discharge of his duties.

In August of 1978, Metropolitan filed a motion for summary judgment of foreclosure and a proposed judgment under GCR 1963, 522.1(2). The defendants filed objections to the proposed judgment contending that the parcels should be sold individually pursuant to MCL 600.3165; MSA 27A.3165, that the judgment should contain a fixed minimum price for each parcel pursuant to MCL 600.3155; MSA 27A.3155 and, finally, that each parcel should be redeemable at its individual bid price.

On September 21, 1978, the trial court held a hearing concerning the defendants’ objections to the proposed judgment of foreclosure. The defendants sought to introduce the testimony of Gerald Walsh, an appraiser, to substantiate their contention that the mortgaged premises would provide a higher return if sold individually. The trial judge refused to allow the proffered testimony, based on paragraph 14 of the mortgage which allows a sale en masse upon default. A judgment of foreclosure approving a sale en masse was entered on September 21, 1978.

On October 10, 1978, defendants filed a motion to amend the summary judgment of foreclosure, alleging that this judgment was not in appealable form as a final judgment under GCR 1963, 518. The motion was denied. On January 24, 1979, the circuit court granted Metropolitan’s motion for entry of an order of confirmation of sale.

On appeal, the defendants allege that MCL 600.3165; MSA 27A.3165 mandatorily requires a sale by individual parcels where it will not result in injury to the interests of the parties. MCL 600.3165; MSA 27A.3165 provides in pertinent part:

"Sec. 3165. (1) If the defendant does not bring into court the amount due, with costs, or if for any other cause a judgment is entered for the plaintiff, and if it appears that the premises can be sold, in parcels, without injury to the interests of the parties, the judgment shall direct as much of the premises subject to the mortgage or land contract to be sold as is sufficient to pay the amount then due on the mortgage or land contract, with costs, and the judgment shall remain as security for any subsequent default.

"(3) If it appears to the court that the premises subject to the mortgage or land contract are so situated that a sale of the whole premises will be most beneficial to the parties the judgment shall be entered for the sale of the whole premises in the first instance.”

This statute is mandatory in nature, and, absent other circumstances, would have been applicable to the instant case. See Masella v Bisson, 359 Mich 512, 517-518; 102 NW2d 468 (1960).

However, paragraph 14 of the mortgage instrument in question contained the following provision:

"If default shall be made in the payment of the indebtedness secured hereby or any part thereof, or in the performance of any covenants, conditions or agreements of this Mortgage then the whole indebtedness hereby secured with all interest thereon and all other amounts secured hereby shall, at the option of the Mortgagee, become immediately due and payable without demand or notice and this Mortgage subject to foreclosure, the said Mortgagee is hereby authorized and empowered to grant, bargain, sell and convey the property hereby mortgaged, and appurtenances at public sale pursuant to the statute in such case made and provided and out of the proceeds to retain all sums hereby secured and the costs and charges of such sale, as well as the cost of certification of abstract or title search, and the attorneys’ fees provided for by law; and such sales or a sale pursuant to a decree in chancery for the foreclosure hereof, may at the option thereof be made en masse. ”

In Clark v Stilson, 36 Mich 482 (1877), the Court stated that property in a foreclosure sale is required to be sold in parcels in order to protect the right of redemption, but where a party waives his right to redeem in advance and for valuable consideration, he cannot object to the fact that the sale was not made in parcels.

The mortgage instrument in question was an arm’s length agreement between businessmen, like any other contract. See generally, Northrip v Federal National Mortgage Ass’n, 527 F2d 23 (CA 6, 1975), where a power of sale in a mortgage was found to be a private contractual remedy. See also, Cramer v Metropolitan Savings & Loan Ass’n, 401 Mich 252; 258 NW2d 20 (1977). If the language of a contract is plain and unambiguous, the intention expressed and indicated in the contract holds. Charles J Rogers, Inc v Dep’t of State Highways, 36 Mich App 620, 627; 194 NW2d 203 (1971). The contractual provision agreed to by the parties does not contravene Michigan public policy, as the statute providing for sale by parcels was merely designed to protect the redemption rights of the parties where no other provision for a foreclosure sale is specified. See Macomb v Prentis, 57 Mich 225, 228; 23 NW 788 (1885), Masella v Bisson, supra. There is no indication that Metropolitan acted in bad faith by choosing to exercise its option to sell the property en masse.

Affirmed.


text:
    PEOPLE v BOSWELL
    Docket No. 78-2504.
    Submitted October 16, 1979, at Detroit.
    Decided January 10, 1980.
    Lloyd Boswell was convicted, upon his plea of guilty, of armed robbery and possession of a firearm in the commission of a felony, Wayne Circuit Court, George T. Martin, J. The defendant was sentenced to a term of eight years to life imprisonment on the armed robbery conviction and to the mandatory two-year prison term on the felony-firearm conviction. The defendant appeals, alleging that 1) the felony-firearm statute is unconstitutional, 2) the felony-firearm statute is inapplicable when the firearm involved belonged to the complainant rather than the defendant, 3) the trial court failed to establish a sufficient factual basis to support the plea on the felony-firearm charge since the gun was temporarily inoperable, 4) reversal is required because the trial judge failed to inform the defendant that no adverse inference could be drawn from his silence if he had a trial and chose not to testify, and 5) that the sentence of eight years to life imprisonment was invalid under the indeterminate sentence statute. Held:

    1. The felony-firearm statute is constitutional.
    2. The defendant was carrying the gun and brandished it when robbing the complainant. It is not required that the defendant have some incident of ownership of the gun.
    3. The fact that the gun was jammed and temporarily inoperable at the time of the offense does not change the result since the operability of the gun is irrelevant to a conviction under the felony-firearm statute.
    4. Reversal is not required because the trial court advised the defendant that he would not have to testify at trial but failed to inform him that no adverse inferences could be drawn from his silence. Nor does the trial court’s failure to inform the defendant that the sentence for the felony-firearm conviction would be served consecutively with the other sentence render the plea involuntary.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 166, 182 et seq., 578.
    [2] 79 Am Jur 2d, Weapons and Firearms §7 et seq.

    [3] 79 Am Jur 2d, Weapons and Firearms § 16.
    [4, 5] 21 Am Jur 2d, Criminal Law § 489.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty or to determine that he is advised thereof. 97 ALR2d 549.
    [6] 21 Am Jur 2d, Criminal Law §§ 540, 581, 614.

      5. The indeterminate sentence statute prohibits a sentence with a maximum of life imprisonment and with a minimum for a term of years included in the same sentence. The sentence must be vacated and the cause remanded for resentencing on the armed robbery conviction.
    Affirmed in part, reversed in part and remanded.
    1. Constitutional Law — Criminal Law — Felony-Firearm Statute — Statutes.
    The felony-firearm statute violates neither the constitutional prohibition against double jeopardy nor the constitutional prohibition against altering and amending existing laws without re-enacting and republishing them (MCL 750.227b; MSA •28.424[2]).
    2. Criminal Law — Felony-Firearm Statute ■— Ownership op Firearm.
    The crime of possession of a firearm during the commission of or the attempt to commit a felony does not require that a defendant have some incident of ownership of the firearm.
    3. Criminal Law — Felony-Firearm Statute — Operability of Firearm.
    The operability of a firearm is irrelevant to a conviction for possession of a firearm during the commission of or attempt to commit a felony.
    4. Criminal Law — Plea of Guilty — Right to Silence — Informing Defendant.
    A plea-based conviction is not reversible because of the failure of the judge taking the plea to advise the defendant that at a trial no inferences could be drawn from the defendant’s silence if he chose not to testify.
    5. Criminal Law — Plea of Guilty — Sentences — Informing Defendant.
    A trial judge at a plea-taking proceeding is only required to inform a defendant of the maximum sentence and any mandatory minimum sentence; the defendant need not be advised of the possibility of consecutive sentences.

      6. Criminal Law — Sentences — Life Sentences — Indeterminate Sentences — Statutes.
    A sentence of a minimum of a number of years to a maximum of life imprisonment is invalid under the indeterminate sentencing statute (MCL 769.9; MSA 28.1081).

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

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

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

   Per Curiam.

Pursuant to a bargaining agreement, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of eight years to life imprisonment on the armed robbery conviction and received the mandatory two-year sentence on the felony-firearm conviction. Defendant now appeals as of right, raising several issues for our consideration.

Defendant first claims that the felony-firearm statute is unconstitutional because it violates the double jeopardy prohibition and alters and amends existing laws without reenacting and republishing them as required by Const 1963, art 4, § 25. Contrary to defendant’s position, the statute withstands attack on both grounds. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), People v Gary Hughes, 85 Mich App 674; 272 NW2d 567 (1978).

We also reject defendant’s argument that the felony-firearm statute is inapplicable when the firearm involved belonged to the complainant rather than defendant. Such reasoning leads to the absurd conclusion that a defendant who has appropriated a stolen or borrowed firearm which he possesses during the commission of or attempt to commit a felony is excluded from the statutory prohibition. Defendant relies on People v Walter Johnson, supra, in which a panel of this Court held that the felony-firearm statute does not apply to aiders and abettors. The Johnson Court refused to extend the statute to include defendants who did not personally possess a firearm during the commission of a felony. The instant case is clearly distinguishable. Defendant herein discovered and seized a loaded gun in complainant’s truck. It remained in his possession upon complainant’s return to the vehicle, at which point defendant brandished the weapon and took the driver’s wallet. Defendant was carrying the gun at the time he committed the robbery. The suggestion that conviction under the statute requires some incident of ownership of the firearm strains logic.

Defendant’s remaining assignments of error concern alleged defects in the guilty plea proceedings. In accordance with our disposition of defendant’s constitutional challenges to the felony-firearm statute, his contention that the plea was involuntary because it was given in misapprehension of the value of the plea agreement is without merit.

Defendant further contends that the trial court failed to establish a sufficient factual basis to support the plea on the felony-firearm charge. It is defendant’s position that since the gun was temporarily inoperable because it was "jammed” it does not meet the definitional requirements of a "firearm” as set forth in MCL 8.3t; MSA 2.212(20), which provides:

"Sec. 3t. The word 'firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceeding .177 calibre by means of spring, gas or air.”

We believe the statute demonstrates a legislative intent to distinguish the firearm from other potentially dangerous weapons by describing its general construction and manner of use. The gun used in the instant case clearly falls within the above definition. Furthermore, this Court found the operability of a gun to be irrelevant for a conviction under MCL 750.227; MSA 28.424, carrying a concealed weapon, in People v Clark, 24 Mich App 440; 180 NW2d 342 (1970), and People v Jiminez, 27 Mich App 633; 183 NW2d 853 (1970). The same reasoning is equally apt here, and a contrary result would thwart the deterrent purpose of the felony-firearm statute.

Another alleged defect in the plea proceeding concerns the trial court’s advice to defendant regarding the right against compulsory self-incrimination. The court advised the defendant that he would not have to testify at trial but failed to inform him that no adverse inferences could be drawn from his silence. This imprecise recital does not require reversal. The Michigan Supreme Court, in Guilty Plea Cases, 395 Mich 96, 123; 235 NW2d 132 (1975), made specific reference to the consolidated case of People v Adkins which raised the identical issue present here:

"Nor is reversal justified in Adkins because of the failure to advise the defendant 'that at a trial no inferences adverse to him may be properly drawn’ if he chooses not to testify.”

Accordingly, defendant’s claim is without merit.

We must additionally decide whether the trial court’s failure to inform defendant that the armed robbery and felony-firearm sentences would be served consecutively rendered the plea involuntary. The court is only required to inform defendant of the maximum sentence and any mandatory minimum sentence. Guilty Plea Cases, supra, at 118. He need not be advised of the possibility of consecutive sentences. People v Bennett, 76 Mich App 264; 256 NW2d 459 (1977), People v Cummings, 84 Mich App 509; 269 NW2d 658 (1978). The trial court in the case at bar informed defendant of the potential maximum life sentence or a sentence for any term of years for armed robbery as well as the mandatory two-year term for the felony-firearm conviction. We find the trial court acted in compliance with GCR 1963, 785.7(1). People v Harper, 83 Mich App 390; 269 NW2d 470 (1978).

At the conclusion of the sentencing hearing, the court imposed a sentence of eight years to life imprisonment. Defendant correctly asserts that this sentence violates MCL 769.9; MSA 28.1081, which provides in part:

"(2) In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any term of years. If the sentence imposed by the court is for any term of years, the court shall fix both the minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.”

Therefore, the sentence must be vacated and the cause remanded for resentencing on the armed robbery conviction. People v Holcomb, 47 Mich App 573; 209 NW2d 701 (1973).

Affirmed in part and reversed in part.


text:
    PEOPLE v RICHARD FORD
    Docket No, 43987.
    Submitted November 6, 1979, at Grand Rapids.
    Decided January 16, 1980.
    Richard J. Ford was convicted, on his plea of guilty, of uttering and publishing a forged document, Calhoun Circuit Court, Paul Nicolich, J, The circumstances of the offense were that Ford used someone else’s credit card to obtain $21.30 from a gasoline service station. Ford appeals, alleging that he should have been charged with use of a stolen card rather than under the general uttering and publishing statute. Held:

    In the circumstances of this case it was an abuse of prosecutorial discretion to charge the defendant with uttering and publishing, which carries a 14-year maximum penalty, rather than with use of a stolen credit card, which carried a four-year maximum.
    Conviction vacated,
    Criminal Law — Prosecutor’s Discretion — Uttering and Publishing — Use of Stolen Credit Card — Statutes.
    The question of whether a prosecutor has abused his discretion by charging a defendant under the general uttering and publishing statute for a credit card offense, rather than under the specific statute prohibiting use of a stolen credit card, should be decided on a case-by-case basis looking to the circumstances of each case (MCL 750.157q, 750,249; MSA 28.354[16], 28.446).
    References for Points in Headnote
    [1] 41 Am Jur 2d, Indictments and Informations §§ 97, 105.
    63 Am Jur 2d, Prosecuting Attorneys §§ 25-27,

      Frank J, Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James D, Nor lander, Prosecuting Attorney, and John H. Macfarlane, Assistant Prosecuting Attorney, for the people.

      Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.

      Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant pled guilty to a charge of uttering and publishing a forged document, contrary to MCL 750.249; MSA 28.446. He was sentenced to not less than four years nor more than 14 years in prison, to be served consecutively with a sentence defendant was already serving. Defendant appeals as of right.

On appeal, defendant claims that it was an abuse of prosecutorial discretion and a violation of general rules of statutory construction to charge defendant under the general uttering and publishing statute when the facts of the case better fit and are more applicable to the specific use of a stolen credit card statute, MCL 750.157q; MSA 28.354(16). Defendant argues that the group of statutes popularly known as the Thomas J. Anderson Credit Card Protection Bill is intended to cover all credit card crime. Defendant points out that while People v Shaw and People v Hester were good law at the time those decisions were handed down, the new statute places this issue in a new light and raises the question in a way which has not yet been decided in Michigan.

In the within case, at the time of plea-taking, defendant stated that he used the credit card of a person named A1 Johnson to obtain $21.30 from a Clark Oil and Refining Corporation station in Battle Creek. Specifically, he said that without permission or authority from A1 Johnson he signed the name A1 Johnson in order to obtain the money.

Under the circumstances indicated in the plea, we are inclined to agree with defendant that under cases like People v LaRose, the credit card statute appears more applicable to the offense concerning which defendant pled guilty.

The question then remains whether, under these circumstances, discretion should remain in the prosecutor as to which statute he should charge defendant with violating.

We believe that this type of issue must be resolved on a case-by-case basis. In the within case, we note that the substance of the difference is that the general uttering and publishing statute under which defendant pled guilty carries a maximum penalty of 14 years, while the credit card statute which appears to be more fitting with relation to the facts of the within case carries a maximum penalty of four years. We note that, in this case, defendant obtained the sum of $21.30. We hold that, under the particular facts of this case, it was an abuse of prosecutorial discretion to charge defendant with the 14-year felony.

We, therefore, set aside defendant’s conviction.

       27 Mich App 325; 183 NW2d 390 (1970).

       24 Mich App 475; 180 NW2d 360 (1970).

       MCL 750.157q; MSA 28.354(16).

       87 Mich App 298; 274 NW2d 45 (1978).