author: R. B. Burns, P.J. J. H. Gillis, J.

text:
    POHL v GILBERT
    Docket No. 78-873.
    Submitted December 13, 1978, at Lansing.
    Decided March 20, 1979.
    Leave to appeal denied, 406 Mich 981.
    Mary Ann Pohl brought an action under the no-fault automobile insurance act against Phyllis G. Gilbert in Ionia Circuit Court claiming that defendant’s negligent operation of the automobile in which plaintiff was a passenger had caused plaintiff serious impairment of body function. Defendant lost control and the car went off the road. Plaintiff was thrown from the car and knocked unconscious. She drifted in and out of consciousness on the way to the hospital. She had two cuts on the back of her head which were sewn up. She had bruises and a sore arm. She was sent home from the hospital the same night. Charles W. Simon, Jr., J., delivered an opinion from the bench finding liability but no serious impairment of body function. The trial court concluded that the complications in plaintiffs arm and lower back were of recent origin and that plaintiffs depression was not proximately caused by the injury. The trial court observed that plaintiff had suffered a limitation in physical activities but also observed that manipulations by a chiropractor may have worsened plaintiffs condition. The trial court found no serious impairment of body function because plaintiff was not disabled from employment, and because her pain could not be too great if she was willing to enter a demolition derby, could pitch softball, and could dance on tables when urged to do so by friends. Judgment for defendant. Plaintiff appeals. Held:

    1. A finding of fact by a court in a nonjury trial is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.
    2. The trial court attached too much significance to plaintiffs willingness to enter a demolition derby, play softball, and dance on table tops. Evidence indicates that plaintiff has to "pay the fiddler” for her activity. Plaintiff was once very active, but is no longer so. Plaintiffs unwillingness to completely curtail her former active lifestyle, and her willingness to "pay the price” to have some fun indicates courage rather than that the injury was not serious. Evidence establishes that plaintiff suffered a spine sprain, with pain radiating into arms and legs. Plaintiff has muscle spasms which, in a vicious cycle, are steadily increasing the pain. She has suffered loss of sensation of grip, and, intermittently, loss of use of the right arm. She has scoliosis. The pain associated with the injury is severe enough to cause her to take to bed intermittently, frequently seek out medical help, and to substantially reduce her physical and social activities. She suffers intermittent depression which makes her speak of suicide, caused by constriction of blood flow to the brain.

      Reference for Points in Headnote

       5 Am Jur 2d, Appeal and Error § 839.

      3. Plaintiff suffered serious impairment of body function as a result of the automobile accident; therefore, a mistake was committed by the trial court.
    Reversed and remanded.
    J. H. Gillis, J., dissented. He would hold that trial evidence establishes or, at the very least, presents a question of fact as to whether or not plaintiffs alleged injuries were minor. The trial court’s finding of no serious impairment of body function is supported by trial testimony and is not clearly erroneous.
    Opinion op the Court
    1. Appeal and Error — Findings op Fact — Bench Trial — Clearly Erroneous — Witness Credibility — Court Rules.
    Findings of fact by a trial court may not be set aside unless clearly erroneous; in applying this principle regard is given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it (GCR 1963, 517.1).
    2. Appeal and Error — Findings of Fact — Bench Trial — Evidence — Clearly Erroneous — Mistake.
    A finding of fact by a court sitting in a bench trial is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.
    3. Appeal and Error — Jury and Nonjury Verdicts.
    The judicial sieve employed by the Court of Appeals in reviewing a nonjury case is appropriately of finer mesh than the one correspondingly employed in the review of a jury’s verdict.

      4. Automobiles — Appeal and Error — Findings of Fact — Bench Trial — Review — Mistake — Serious Impairment op Body Function.
    A finding of fact by a court in a nonjury case that a plaintiff suffered no serious impairment of body function as a result of an automobile accident is reversible on appeal where the appellate judges, upon review of the entire record, are left with a definite and firm conviction that serious impairment of body function did occur and that the trial court had made a mistake.
    Dissent by J. H. Gillis, J.
    5. Automobiles — Appeal and Error — Findings of Fact — Bench Trial — Review — Clearly Erroneous — Evidence — Serious Impairment op Body Function.

      The findings of fact by a trial court in a nonjury case involving a plaintiff claiming serious impairment of body function as a result of an automobile accident should be sustained where the trial court found no serious impairment and the record establishes or, at the very lease presents, a question of fact as to whether or not plaintiff’s alleged injuries were minor; in a nonjury case, a trial court’s decision is not clearly erroneous where there is ample testimony to support it.

      Starr & Cornell, for plaintiff.

      O’Connor, McNamara & O’Keefe, for defendant.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   R. B. Burns, P.J.

Plaintiff brought suit under the no-fault automobile insurance act alleging that defendant’s negligent operation of an automobile in which plaintiff was a passenger had caused plaintiff serious impairment of body function. See MCL 500.3135(1); MSA 24.13135(1). A bench trial was held, at the conclusion of which the trial court found negligence, but no serious impairment of body function. Plaintiff appeals and we reverse.

Plaintiffs primary contention on appeal is that the trial court erred in finding no serious impairment of body function.

Findings of fact by the trial court may not be set aside unless clearly erroneous. In applying this principle regard is given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. GCR 1963, 517.1. A finding of fact is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). "The 'judicial sieve’ employed here is appropriately 'of finer mesh than the one correspondingly employed here on review’ of a jury’s verdict. Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405 (1957).” Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 339; 247 NW2d 813, 817 (1976).

Testimony at trial by plaintiff, her family, and friends, established that, prior to the accident, plaintiff was a healthy, active and sociable person. She was never sick and never complained of neck or back problems. She was very active, engaging in intramural high school volleyball, bike riding, roller skating, motorcycling, and snowmobiling. She would help out around her father’s farm, loading corn in the pickup, mowing the lawn, and picking up stones in the field. She would do acrobatics on the flagpole and a barn rope. She was variously described as happy-go-lucky, a girl who wanted to live for everything, always on the run, fun-loving, and a "terror”. She went out at least four nights a week. A month before the accident she moved out of her parents’ home to live in an apartment with a girlfriend.

The accident occurred November 16, 1973, shortly after midnight. Plaintiff was 19 years old. Defendant lost control of the car and it went off the road. Plaintiff was thrown from the car and knocked unconscious. She drifted in and out of consciousness on the way to a hospital by ambulance. She had two cuts on the back of her head which were sewn up. She also had bruises on her body and one arm hurt, although, by the time of trial, she could not say which arm. X-rays were taken, and apparently were negative. She was sent home from the hospital the same night.

Plaintiff’s roommate testified that, when plaintiff came home from the hospital, plaintiff was very tense, had severe headaches, and complained of back and head pain. Plaintiff started keeping to herself, and hardly ever went out after the accident. She had rarely seen plaintiff since plaintiff moved out in February of 1974.

Plaintiff testified that the head cuts hurt so much that she did not really notice any neck or back pain until the stitches were removed by Dr. Laughlin on November 23, 1973. She thereafter went to her family physician, Dr. Anderson, on December 23, 1973, complaining of pain in her neck, shoulders and back. Dr. Anderson testified by. deposition that his diagnosis was whiplash— multiple soft tissue injuries of the back, shoulders and neck. Considering the absence of complaints of this type before the accident; Dr. Anderson concluded that the injury was the result of the accident. He provided plaintiff with ultrasonic treatment, muscle relaxants, anti-inflammatory agents and pain tablets. Plaintiff returned to Dr. Anderson for further treatments on December 5, December 11, and December 28, 1973. However, despite treatments by Dr. Anderson and other doctors, plaintiff’s pain has persisted and gotten worse.

Plaintiff moved back to her parents’ farm in February, 1974. Plaintiffs family testified that, since the accident, plaintiff always seems to be either complaining about her neck and back pain or is in bed suffering. She sometimes takes to bed for three days at a time. Someone is always having to rub her back or neck for her. She gets very depressed, has crying jags, says she doesn’t want to live, and threatens to kill herself. Her father can’t talk to her because she runs off and cries. Her sister testified that the depression is getting worse.

Plaintiffs level of physical activity has been reduced. Plaintiff can no longer bowl, or ride horses, snowmobiles or motorcycles, or do acrobatics. She cannot help out on farm chores. She did enter a demolition derby in August, 1974, but her car quit before the start and she was not hit. She wore a helmet, neck collar, padding and seatbelt for protection. She played slow pitch softball because she wanted to have some fun, but she hurt afterwards. Rather than go to a party with her teammates after the games, she would go home, clean up, and go to bed. Her brother observed that she could play the game, but she "paid for it” in pain.

Plaintiffs social life has suffered. She only goes out once or twice a week now, because she recognizes that she has become a chronic complainer and does not want to spoil the fun of friends. However, she can and does get on the top of tables and dances when urged to do so by friends. Plaintiffs sister testified that, when they go out, plaintiff can’t keep up and wants to go home too soon. Plaintiff cancelled three shopping trips she had agreed to go on with her sister prior to the last Christmas, saying she was too sick with a sore neck to go. When she went to Florida with a girlfriend, driving only a little because it bothered her, she found she could not get out of the hotel bed by herself, or even lift her head off the pillow, because of her sore neck and back. She had no fun at the last Tip-up Town, because she had a sore back and neck, could not ride snowmobiles like everyone else, and the friend she was with ignored her.

Plaintiff testified that her condition is getting worse. Her back pain is more constant, and becoming worse in her lower back. Her left arm had developed shooting pains if she lifted it too far, but in September, 1977, it got worse and she couldn’t use it for three weeks. Just before trial she found she was losing her grip, dropping things, and could not type accurately. However, she believes she could still do secretarial or selling work, though she was not working. Sometimes when she sits, her legs get numb or go to sleep. She wears a neck collar at home, and is currently taking valium and muscle relaxants.

Plaintiff has sought medical help frequently. Between January 14, 1974, and October 26, 1974, she went to Dr. Tarry, a chiropractor, for manipulations 56 times. This would provide her with temporary relief. She then went to Dr. Badgley three times between November, 1975, and January, 1976. Dr. Badgley prescribed pain relievers and muscle relaxants, and advised that she discontinue chiropractic treatment while she was in his care. However, the medications hurt plaintiff’s stomach and made her drowsy, so she only took them when the pain became severe. She went back to Dr. Anderson in March and April, 1976, for traction treatment, muscle relaxants, aspirin and an anti-inflammatory agent. She went to a Dr. O’Connor twice during the summer of 1976 for manipulations of her back and hip. During October and November she returned to Dr. Anderson for ultrasonic treatments. Starting in the summer of 1977 to the time of trial, February, 1978, she saw a Dr. Brown for manipulations and valium. She saw Dr. Badgley a last time in October, 1977.

Dr. Badgley testified by deposition that when plaintiff visited him in November, 1975, she complained of cervical, dorsal and lumbar spine pain radiating into the shoulders and sometimes arms, aggravated by lifting of arms over the head; intermittent sharp shooting leg pain; and headaches. He diagnosed residual cervical, dorsal, lumbar spine sprain. He defined sprain as a tearing of supporting tissues around joints caused by movement of the joint beyond normal range. Plaintiff was suffering from trapezius muscle spasm, which he described as a vicious cycle whereby the muscle contracts to limit motion in response to pain, which, self-defeating, causes more pain and more spasm and pain. Her range of motion in the neck and back were normal, but there was pain at the extreme of range of motion. She had a gentle scoliosis in the dorsal-lumbar area, caused by muscles pulling harder on one side than the other, bowing the spine. Dr. Badgley testified that, when plaintiff returned in October, 1977, she complained that she hurt most of the time in the cervical area, and had intermittent pain in the lumbosacral region. He once again found muscle spasm over the trapezius. He found plaintiff had developed a loss of sensation in the right shoulder and arm, extending to the ring and long fingers, showing compression of the nerve roots in the neck. The scoliosis had become worse. He testified that it would not be possible to fake loss of sensation, muscle spasm, or scoliosis. Characteristic of an injury of this type is an inability to look up or raise one’s arms over the head without pain. Thus, a person with this type of injury can’t bowl, wash windows, paint walls, horseback ride, jog, go snowmobiling, or play tennis. If they try to do such things, they must "pay the fiddler” with pain. Persons with this injury become depressed, weepy, cranky, unpredictable, and have temper tantrums. These personality changes are caused by muscle spasm compressing the vertebral artery as it goes into the skull, constricting blood flow. Those who are married have an alarming divorce rate. Dr. Badgley opined that, as plaintiff had been getting worse, she would continue to get worse. Assuming there were no similar symptoms before the accident, he opined that the accident caused the current symptoms. Finally, he was certain that she was not faking the injury.

The trial court delivered an opinion from the bench, apparently finding liability but no serious impairment of body function. The trial court appears to have discounted the significance of the complications in plaintiff’s arm and lower back, observing that they were of recent nature. The trial court found that the depression was not proximately caused by the injury. The trial court observed that plaintiff had suffered a limitation in physical activities, but also observed that the manipulations by the chiropractor may have worsened plaintiff’s condition. The trial court found no serious impairment of body function because plaintiff was not disabled from employment, and because her pain could not be too great if she was willing to enter a demolition derby, could pitch softball, and could dance on tables.

Assuming the trial court found later complications insignificant, we disagree with the conclusion, Medical testimony was unequivocal that the inability to raise the arm above shoulder level without great pain is a natural condition of this type of injury, and that the recent loss of sensation is the result of compressed nerve roots arising out of the injury, and extends into the hand. Additionally, there is a clear inference that the lower back pain is caused by the injury. Merely because the more recent complications are removed from the injury by time does not mean they were not caused by the injury, where they are a result of a natural progression of the ailment. Certainly, loss of use and sensation in an arm is a serious complication worthy of consideration.

We do not agree that the depression was not proximately caused by the accident. Prior to the accident plaintiff was happy-go-lucky. After the accident she has suffered pain and intermittent depression. Dr. Badgley testified that depression is associated with this type of injury, and caused by constriction of the vertebral artery blood flow due to spasm. Plaintiff suffers from spasm, caused by pain from the sprain, which in turn was caused by the accident. We can see no basis for any inference but that the depression was proximately caused by the accident.

That the manipulations by the chiropractor may have been viewed by plaintiffs medical doctors as counterproductive is of no significance. Plaintiff obtained temporary relief from the manipulations. There is no evidence of negligence on her part in selecting chiropractic care for her injury. Reed v Detroit, 108 Mich 224; 65 NW 967 (1896). When she was advised by Dr. Badgley to discontinue chiropractic treatment because of incompatibility with his treatment, she did so, at least until no longer able to stand the pain which had not been abated by Dr. Badgley’s treatment.

We accept the trial court’s conclusion that plaintiff was not disabled from employment, though with reservation. Plaintiff testified that she was able to do secretarial or sales work. However, she had worked only three or four months in the last three years; her father testified that she returned to live with him because she could not hold a job, and she would not be able to do heavy work; Dr. Badgley agreed plaintiff could not do heavy work; and, if plaintiff’s arm is useless at times, it would seem she would be hard put to type at those times.

We believe the trial court attached too much significance to plaintiff’s willingness to enter a demolition derby, play softball, and dance on table tops. Evidence indicates plaintiff has to "pay the fiddler” for her activity. It is clear that plaintiff was once very active, but is no longer so. That she is not willing to completely curtail her former active lifestyle, and is willing to "pay the price” to have some fun, indicates courage, rather than that the injury was not serious.

A review of the entire evidence establishes that plaintiff suffered a spine sprain, with pain radiating into arms and legs. She has muscle spasms which, in a vicious cycle, are steadily increasing the pain. She has suffered loss of sensation, reduction of grip, and, intermittently, loss of use of the right arm. She has scoliosis. The pain associated with the injury is severe enough to cause her to take to bed intermittently, frequently seek out medical help, and to substantially reduce her physical and social activities. She suffers intermittent depression which makes her speak of suicide, caused by constriction of blood flow to the brain. We conclude that she suffered serious impairment of body function, and are left with a definite and firm conviction that a mistake has been committed.

Reversed and remanded for a new trial on the damage issue. Costs to plaintiff.

V. J. Brennan, J., concurred.

J. H. Gillis, J.

(dissenting). I dissent. The record in this case establishes or, at the very least, presents a question of fact as to whether or not the alleged injuries were minor. Plaintiff was treated as an outpatient at the hospital. The record establishes or, at least, presents a question of fact of whether the problems with plaintiff’s arm or lower back or hip were of recent origin. There is testimony that plaintiff stated that her right arm did not begin bothering her until the summer of 1977, more than 3-1/2 years after the accident. She stated that her hip problems did not arise until Christmas of 1977.

There is a serious question as to the health condition of the plaintiff prior to the accident in question. Additionally, we have the testimony that plaintiff attempted to drive a car in a demolition derby but the car engine died out as she drove it on to the field. Plaintiff is still able to dance on table tops and frequently pitches softball in a league. While plaintiff was at the hospital she could not remember which arm hurt.

All of the above present a strong question of fact for the fact finder. There is ample testimony to support the trial court’s findings. I find the court’s decision was not "clearly erroneous” and I would affirm the trial court.

       Evidence on the liability issue was very slim. The trial court found that "there’s no question of the — liability is not an issue here”. The court then proceeded to discuss the serious impairment of body function issue. If the trial court found no liability, the subsequent analysis would have been superfluous. We conclude the trial court found liability. As defendant did not cross-appeal, we do not reach the issue of whether liability was established.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v PETRAC
    Docket No. 78-1094.
    Submitted November 3, 1978, at Lansing.
    Decided March 20, 1979.
    Paul J. Petrac was charged with receiving and concealing stolen property over $100. At the preliminary examination, a prosecution motion to compel the defendant to submit handwriting exemplars was granted. The defendant was granted leave to appeal to Oakland Circuit Court which reversed the district court order, William J. Beer, J. The people appeal by leave granted. Held:

    Compelling the defendant to provide a handwriting exemplar which is non-communicative in nature and is used solely for comparison purposes violates neither the defendant’s Fifth Amendment privilege against self-incrimination nor any provision of Michigan law.
    Reversed. The circuit court order is vacated.
    1. Criminal Law — Evidence — Handwriting Exemplars — Constitutional Law.
    Compelling a criminal defendant to provide a handwriting exemplar which is non-communicative in nature and to be used for comparison purposes is not a violation of the defendant’s Fifth Amendment privilege against self-incrimination (US Const, Am V).
    2. Criminal Law — Evidence — Handwriting Exemplars — Statutes.
    The admission into evidence of handwriting specimens in criminal proceedings is controlled by a provision of the code of criminal procedure, which allows such admission for the purpose of comparison (MCL 768.25; MSA 28.1048).
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 362.
    29 Am Jur 2d, Evidence § 811.

       21 Am Jur 2d, Criminal Law § 362.
    Mode and degree of proof required to establish genuineness of handwriting offered as standard or exempler for comparison with a disputed writing or signature. 41 ALR2d 575.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and James C. Mitchell, Assistant Prosecuting Attorney, for the people.

      Seymour Berger, for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

A warrant was issued charging defendant with receiving and concealing stolen property of over $100, MCL 750.535; MSA 28.803. At preliminary examination, the prosecution moved to compel defendant to submit handwriting exemplars, which motion the district judge granted. Defendant applied for and was granted leave to appeal by the Oakland County Circuit Court. After reviewing briefs submitted by both parties, the circuit court reversed the district court order. From the circuit court ruling the people appeal by leave granted.

Defendant had contended, in circuit court, that a defendant cannot be compelled to give handwriting exemplars under Michigan law based upon holdings in People v Sturman, 209 Mich 284; 176 NW 397 (1920), and People v Smogoleski, 14 Mich App 695; 166 NW2d 14 (1968).

The United States Supreme Court in Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), held that the taking of exemplars was not a critical stage of the criminal proceedings entitling petitioner to assistance of counsel, and that the taking of exemplars does not violate the Fifth Amendment privilege against self-incrimination. The Supreme Court provided further guidance regarding handwriting exemplars in United States v Mara, 410 US 19; 93 S Ct 774; 35 L Ed 2d 99 (1973). There they indicated that "the specific and narrowly drawn directive requiring the witness to furnish a specimen of his handwriting* violated no legitimate Fourth Amendment interest.” Mara, supra at 22. The asterisk in this quote referred to a footnote which further explained defendant’s Fifth Amendment privileges. This footnote states in part:

"But the Government’s petition for the order to compel production stated: 'Such exemplars will be used solely as a standard of comparison in order to determine whether the witness is the author of certain writings.’ If the Government should seek more than the physical characteristics of the witness’ handwriting — if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement — then, of course, the witness could assert his Fifth Amendment privilege against compulsory self-incrimination.” Mara, supra at 22.

Gilbert and Mara clearly indicate that there is no violation of a defendant’s Fifth Amendment privilege against self-incrimination when he is compelled to provide a handwriting exemplar to be used for comparison purposes.

Though the law is clear that the United States Constitution does not prohibit the requiring of handwriting exemplars, defendant’s position is that Michigan law forbids compelling of handwriting exemplars. Indeed, a cursory reading of Sturman would tend to support this contention. There the Michigan Supreme Court, after citing 1915 CL 12539, which was a predecessor statute to MCL 600.2144; MSA 27A.2144, stated in dicta that:

"Quite likely it would have been error to compel the witness, against objection, to make the signatures he did.” Sturman, supra at 289.

MCL 600.2144; MSA 27A.2144 concerns admission into evidence of the handwriting of any person. It states:

"Whenever in any suit or proceeding in any of the courts of this state, it shall be necessary or proper to prove the signature or the handwriting of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or connected with the case or not. If such paper is not one admissible in evidence for some other purpose, or connected with the case, it shall not be admissible in evidence for the purpose of comparison unless it was made before the controversy arose concerning which such suit or proceeding was brought.”

It is clear that in 1920 when the Michigan Supreme Court decided Sturman a handwriting exemplar of the type involved in this case was not admissible under the predecessor statute to MCL 600.2144; MSA 27A.2144. While it is true that MCL 600.2144; MSA 27A.2144 remains in force, essentially in the same form as it was in 1920, it does not alone state the law in this area. In 1927, MCL 768.25; MSA 28.1048 was enacted. This section states:

"Whenever in the trial of any criminal case it shall be necessary or proper to prove the signature of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one in evidence or connected with the case or not.”

It is this statute, rather than MCL 600.2144; MSA 27A.2144, that governs admission of handwriting specimens in criminal proceedings. The fact that specimens of handwriting were obtained after defendant’s arrest does not offend that statute. People v Harris, 69 Mich App 505, 506; 245 NW2d 110 (1976). The enactment of MCL 768.25; MSA 28.1048 necessarily limits the applicability of Sturman to civil cases. Defendant’s reliance on Smogoleski is similarly misplaced. The Court in that case indicated:

"Defendant for the first time on appeal raises the question of the prohibition provided in CLS 1961, § 600.2144 (Stat Ann 1962 Rev § 27A.2144) against using a sample signature created after the controversy concerning which the criminal proceedings were brought. It appears that, although objection was made to admission of the evidence, it was predicated on a violation of Fifth and Sixth Amendment privileges and not as a violation of the statute. This Court need not pass on the controversy as to whether the aforementioned section of the revised judicature act of 1963 applies only to civil matters. People v Sturman (1920), 209 Mich 284, indicates that the signatures may not be compelled, but may be used if voluntarily given. No objection was made either in Sturman or in the instant case predicated on this statute. Sturman holds that by not interposing an objection based on this statute to have the paper containing the picture excluded for comparison purposes, a defendant waives the benefit of same.
"Defendant’s conviction is affirmed.” Smogoleski, supra at 700-701.

The Court clearly held that because the statute had not been brought into play, Gilbert v California, supra, permitted the handwriting exemplar to be introduced into evidence and affirmed defendant’s conviction. Thus, in light of Harris, Smo goleski, rather than supporting defendant’s position, must be interpreted as sustaining the people’s position.

We find the handwriting exemplar requested by the people to be non-communicative in nature and that this compulsion does not violate the Fifth Amendment. Holt v United States, 218 US 245; 31 S Ct 2; 54 L Ed 1021 (1910), Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Additionally, there is no provision in Michigan law which prohibits a criminal defendant from being required to submit handwriting exemplars.

The circuit court’s order reversing and setting aside the order of the district court is vacated. The people may require defendant to submit handwriting exemplars as ordered by the district court.

Reversed.


author: T. M. Burns, J.

text:
    McGrath v Clark
    Docket Nos. 78-1211, 78-1212.
    Submitted November 7, 1978, at Lansing.
    Decided March 20, 1979.
    Robert L. McGrath and Paul McGrath were injured when the motorcycle they were riding was struck by a vehicle driven by Dennis N. Clark, and each of the McGraths sued Clark for damages. Before trial defendant made offers of judgment to each plaintiff which were accepted by them. Before entry of the judgments a dispute arose over payments of costs and interest. The parties resolved the dispute with regard to costs only. The Lenawee Circuit Court, Kenneth B. Glaser, Jr., J., ruled that no interest attached to the judgments. Plaintiffs appeal, and the cases are consolidated for hearing and decision. Held:

    The offers of judgment in this case made no provision for interest. Therefore, the matter of interest is controlled by statute, and interest is to be allowed the same as on any other judgment.
    Remanded for modification of the judgments to allow for prejudgment interest.
    1. Statutes — Construction of Statutes — Words and Phrases — Shall — Any.
    Under normal rules of statutory construction, the word "shall” is mandatory and not a grant of discretion and similarly, the word "any” is to be considered all-inclusive.
    2. Judgment — Offer of Judgment — Interest on Judgment — Statutes — Court Rules.
    Interest is to be allowed on an offer and acceptance of judgment in the same manner as on any other judgment where the parties have made no provision for interest in either the offer or the acceptance of judgment pursuant to court rule (MCL 600.6013; MSA 27A.6013, GCR 1963, 519).
    References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 25, 244.

       45 Am Jur 2d, Interest and Usury § 60.

       45 Am Jur 2d, Interest and Usury § 97.

      3. Judgment — Interest on Judgment — Accumulation of Interest — Statutes — Court Rules.
    The statute and the court rule which govern the allowance of prejudgment interest, when read together, provide a method for the termination of the accumulation of interest but not for the elimination of interest altogether (MCL 600.6013; MSA 27A.6013, GCR 1963, 519).

      Baker, Durst, Marr & Nelson, for plaintiffs.

      Robertson, Bartlow & Des Chenes, P.C., for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   T. M. Burns, J.

These consolidated cases were based on a single incident and raise the same issue of law on appeal. The issue relates to the payment of prejudgment interest under MCL 600.6013; MSA 27A.6013, where the parties agree on an offer of judgment under GCR 1963, 519.1. The problem arises on the following facts.

On June 19, 1975, Robert and Paul McGrath were injured when the motorcycle they were riding was struck from the rear by a pickup truck driven by defendant Dennis Clark. Individual suits were started in the name of each plaintiff on November 3, 1975. Two weeks before the trial date, defendant made an offer of judgment in the amount of $10,000 to Robert McGrath and $20,000 to Paul McGrath. The offers were silent on the question of interest and represented the limits of liability on defendant’s insurance policy. The offers were accepted and the appropriate documents were filed with the court.

Although rule 519 envisions that once the offer is accepted and filed, the clerk will perform the ministerial act of entering the judgment, in this case a dispute arose over the payment of costs and interest on the judgment. The dispute on costs was resolved and is not questioned on appeal. The circuit court resolved the interest question in favor of defendant and this appeal followed.

Rule 519.1, while resolving the question of costs, does not mention interest. The offer in this case did not contain an interest term. The trial court held that no interest attached to the judgment, apparently because it believed that no interest attached to offers of judgment or that interest was implicitly included in the amount offered. We disagree and reverse.

RJA § 6013 provides that "[ijnterest shall be allowed on any money judgment recovered in a civil action * * Under normal rules of statutory construction, the word "shall” is mandatory and not a grant of discretion to the trial court. See King v Director of Midland County Department of Social Services, 73 Mich App 253, 259; 251 NW2d 270 (1977). By the same rules, the word "any” is to be considered all-inclusive. We, therefore, conclude that where the parties have made no provision for interest in the offer or acceptance of a judgment under rule 519.1, interest is to be allowed the same as on any other judgment.

This is not inconsistent with either the purposes of GCR 519 or prior cases. We agree with defendant that one of the purposes of rule 519 is to promote settlements and avoid costly litigation. It does not necessarily follow, however, that prejudgment interest merges into the offer by implication. This would occur if the court rule expressly provided for the offer to include interest, but the present rule does not. Compare, Proposed MCR 2.405. Cf. WCCR 21.13 (meditation). Under the present rule, where the offer is silent on the question of interest the statute applies. This leaves the parties free to negotiate on the subject but does not deprive one party of a statutory right by mere silence. As Honigman and Hawkins have noted, the effect of rule 519 in conjunction with RJA § 6013 is to possibly stop interest from running on the date of the offer. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 250 (1978 supp). It is two completely different things to say that the rule will terminate the accumulation of interest and to say that the rule will eliminate interest altogether. The statute and rule provide for the termination of the accumulation of interest, not its elimination.

Neither Bertilacci v Avery, 42 Mich App 483; 202 NW2d 331 (1972), lv den 388 Mich 801 (1972), nor Beltz v Kimberley, 63 Mich App 700; 235 NW2d 25 (1975), dealt with the question presented by this case. Both involved a situation where the offer was rejected and a trial held. There is no indication in either case that interest was not included in the rejected offer and in Beltz it is clear that interest was included in the rejected offer, not to be added to it. Those cases do not control here.

In conclusion, we hold that where the parties agree on the entry of judgment under GCR 519.1, but make no provision for prejudgment interest, the party in whose favor the judgment is entered is entitled to interest under RJA § 6013. We, therefore, remand these cases to allow the judgment in each to be modified to provide for prejudgment interest as provided in the statute.

Remanded. Costs to appellants.

       The entire rule provides: "1. Offer of Judgment. A party defending against a claim may serve upon the adverse party an offer, in writing, to allow judgment to be taken against him for all or a part of the claim for relief in accordance with the term of the offer together with costs then accrued. If the adverse party serves written notice that the offer is accepted, within 10 days after the service of the offer and before the evidence is closed, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer which is received 10 days before the evidence is closed and is not accepted within 10 days after being received shall be considered rejected. An offer received less than 10 days before the evidence is closed may be accepted or expressly rejected before the evidence is closed but if it is not thus expressly accepted or rejected the offer shall not be considered as rejected and shall have no effect on costs. Evidence of an offer is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the rejected offer, the offeree must pay the taxable costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer.”

       In the original volume, Honigman & Hawkins made it clear that rule 519 had no effect on the question of interest. See, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 647.

       The statute provides: "Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is subsequently rendered and the offer of settlement is substantially identical or substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date the written offer of settlement is made.” MCL 600.6013; MSA 27A.6013.
      The last sentence of the statute is . not applicable because the offer was accepted. But, it may be relevant to show that the legislative intent was not to eliminate interest altogether, but only to terminate the accumulation of interest at the time of the offer.

         Proposed MCR 2.405(a)(2) defines an offer as "a written notification to an adverse party of the offeror’s willingness to stipulate to the entry of a judgment in a sum certain, including all costs and interest then accrued”.

       On the question of whether the insurance carrier can be held responsible for prejudgment interest which would bring the total amount paid by the company above the stated policy limits, see Denham v Bedford, 82 Mich App 107; 266 NW2d 682 (1978).


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

text:
    LARKIN v BAY CITY PUBLIC SCHOOLS
    Docket No. 78-1302.
    Submitted January 16, 1979, at Detroit.
    Decided March 20, 1979.
    Leave to appeal denied, 406 Mich 979.
    Plaintiff Mary A. Larkin was employed by the Bay City School District as a hall monitor during the school year, but was not employed during summer vacation periods. By a letter of March 25, 1975, plaintiff was informed by the district that it did not plan to rehire her for the 1975-1976 school year, and her employment was terminated as of June 7, 1975. Plaintiff applied for unemployment benefits on June 9, 1975, which benefits were denied by the Michigan Employment Security Commission. Plaintiff appealed to the Michigan Employment Security Commission Appeal Board, which held that she was not entitled to unemployment benefits during the summer months, those months constituting a "denial period” under the Michigan Employment Security Act. Plaintiff appealed to circuit court, arguing that the appeal board failed to properly apply the law and that the "denial period” provision of the act violated the equal protection clauses of the state and Federal constitutions. The Ingham Circuit Court, Michael G. Harrison, J., affirmed the decision of the appeal board. Plaintiff appeals. Held:

    1. A school district employee is separated from his job, for the purpose of determining whether a "denial period” applies, on the last day of his employment.
    2. A "period between two academic years or terms”, as used in the Michigan Employment Security Act, is to be determined by the calendar established by the school district, not by an individual’s particular circumstances.
    3. A constitutional challenge on equal protection grounds of the "denial period” provisions of the Michigan Employment Security Act is reviewed under the traditional rational basis test.

      References for Points in Headnotes

       76 Am Jur 2d, Unemployment Compensation §§ 93, 94.

       76 Am Jur 2d, Unemployment Compensation § 32.

       76 Am Jur 2d, Unemployment Compensation § 13.

       16 Am Jur 2d, Constitutional Law § 172.

       76 Am Jur 2d, Unemployment Compensation § 5.

       76 Am Jur 2d, Unemployment Compensation § 6.

       76 Am Jur 2d, Unemployment Compensation § 38.

      4. The "denial period” provision of the Michigan Employment Security Act is not arbitrary in that it is rationally related to the purpose of the Michigan Employment Security Act.
    5. The exception of state employed nonprofessional school employees from the “denial period” provision, as provided for in the Michigan Employment Security Act, does not create an impermissible differentiation between persons of the same class.
    Affirmed.
    1. Unemployment Compensation — Employment Security Commission — Appeal Board — Courts — Standard of Review — Statutes.
    The standard for judicial review of a decision of the Employment Security Commission Appeal Board, where the facts are not contested, is whether the appeal board properly applied the law (MCL 421.38; MSA 17.540).
    2. Unemployment Compensation — Statutes — Construction — Michigan Employment Security Act — School District Employees — Denial Period.
    A school district employee is separated from his job, for the purpose of determining whether a "denial period” for receiving unemployment compensation benefits applies, on the last day of his employment (MCL 421.27[i][3]; MSA 17.529[i][3]).
    3. Unemployment Compensation — Statutes — Construction — Michigan Employment Security Act — Successive Academic Years.
    A "period between two academic years or terms”, for the purpose of determining whether a "denial period” for receiving unemployment compensation benefits applies, is to be determined by the calendar established by the school district, not by an individual's particular circumstances (MCL 421.27[i][3]; MSA 17.529[i][3]).
    4. Constitutional Law — Statutes — Equal Protection — Test.
    A constitutional challenge on equal protection grounds to the "denial period” provision for school district employees of the Michigan Employment Security Act is reviewed under the traditional rational basis test, rather than the fair and substantial relation test, since no discrete exception exists and the legislative history demonstrates that this provision of the act is experimental in nature (MCL 421.27[i]; MSA 17.529[i]).
    5. Constitutional Law — Statutes — Equal Protection — Rational Basis Test.
    Legislation reviewed under the rational basis test for equal protection comes clothed with a presumption of constitutionality, with the burden upon the one challenging the statute’s classification to show that the classification is essentially arbitrary and capricious and fails to rationally further any legitimate state purpose.
    6. Unemployment Compensation — Statutes — Construction — Michigan Employment Security Act — Purpose.
    The purpose of the Michigan Employment Security Act is to safeguard the general welfare through benefits intended to ameliorate the effects of involuntary unemployment; but the act is not intended to increase the compensation of wage earners employed on a fixed, but somewhat irregular, schedule (MCL 421.2; MSA 17.502).
    7. Unemployment Compensation — Denial Period — School District Employees — Michigan Employment Security Act.
    The "denial period” provision relative to school district employees contained in the Michigan Employment Security Act is not arbitrary in that it is rationally related to the purpose of the act; the maintenance of fiscally sound school districts and social welfare systems are legitimate legislative concerns (MCL 421.27M; MSA 17.529[i]).
    8. Unemployment Compensation — State Employees — Classification — Michigan Employment Security Act.
    The exception of state employed nonprofessional school employees from the "denial period” provisions of the Michigan Employment Security Act is not an impermissible differentiation between persons of the same class (MCL 421.27[i][2]; MSA 17.529[i][2]).

      Kasoff, Young, Gottesman, Kovinsky, Friedman & Walkon (by John C. Claya), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and E.J. Setlock, Assistant Attorney General, for the Michigan Employment Security Commission.

      Lambert & Leser, P.C., for Bay City Public Schools.
    Amicus Curiae:

      Fieger, Cousens & Boesky, for the Michigan Federation of Teachers.
    Before: D. C. Riley, P.J., and J. H. Gillis and Mackenzie, JJ.
   D. C. Riley, P.J.

Plaintiff appeals by right a March 10, 1978, order of the Ingham County Circuit Court affirming the decision of the Michigan Employment Security Commission Appeal Board that she was ineligible for unemployment benefits during the summer months of 1975.

Plaintiff was employed by the Bay City Schools as a hall monitor, beginning work in February, 1973, and working through succeeding school years, but never during the summer vacation periods.

By letter dated March 25, 1975, plaintiff was informed by the Bay City School District that it did not plan to rehire her for the 1975-1976 school year, and that her employment was terminated as of June 7, 1975. Plaintiff applied for unemployment benefits on June 9, 1975, which benefits were initially denied by the Michigan Employment Security Commission. Following two unsuccessful administrative hearings, plaintiff appealed to the Michigan Employment Security Commission Appeal Board on April 7, 1976, which held that under §§ 27(i)(2) and 27(i)(4) of the Michigan Employment Security Act, MCL 421.27(0; MSA 17.529(0, the summer months of 1975 constituted a "denial period”, during which she was not entitled to unemployment benefits. From the adverse ruling in circuit court, plaintiff brings this appeal.

The standard for judicial review of a decision of the Michigan Employment Security Commission Appeal Board appears in MCL 421.38; MSA 17.540, which states:

"(1) The circuit court * * * may review questions of fact and law on the record made before the referee and the board of review involved in a final order or decision of the board, and may make further orders in respect thereto as justice may require, but the court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record.
"(4) An appeal may be had from the decision of the circuit court in the same manner as provided by the laws of this state with respect to appeals from circuit courts.”

The facts in this case are not contested. Therefore, we review the circuit court’s determination that the appeal board had properly applied the law. See MCL 600.308(1); MSA 27A.308(1), GCR 1963, 801.3(1), Lyscas v Chrysler Corp, 76 Mich App 55, 59-60; 255 NW2d 767 (1977), Baker v General Motors Corp, 74 Mich App 237, 244-245 fn 2; 254 NW2d 45 (1977), lv gtd 402 Mich 828 (1977). The statute in effect at the time of plaintiff’s request for benefits reads as follows:

"(i) Benefits based on service in employment * * * shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other service subjects to this act, except that:
* * *
"(2) Benefits based on service for a school district, a community college district, a school or educational facility owned or operated by the state, or a school operated by a political subdivision of the state shall not be paid to an individual for a week of unemployment within a denial period, as defined in this subsection, if the individual normally would not perform services during that period. A requalification period, however, may be served during a denial period. This subdivision shall not deny benefits to an employee of the Michigan school for the blind, the Michigan school for the deaf, or the state technical institute and rehabilitation center, except for those serving in an instructional, research, professional, or principal administrative capacity. For the purpose of this subdivision service in a professional capacity means service in a position which requires a bachelor’s degree as an educational requirement.
"(3) Notwithstanding subdivision (2), the denial of benefits shall not be applicable to an individual who has been separated from his job under nondisqualifying circumstances and his employment relationship severed more than 7 calendar days before the end of the academic year or term, vacation period, or holiday recess,
"(4) A 'denial period’ for purposes of this subsection is a vacation period or holiday recess occurring during the academic year, a period between 2 successive academic years or terms, or a period of paid sabbatical leave provided for in the individual’s contract.” MCL 421.27(i); MSA 17.529(i).

Plaintiffs initial argument involves a bifurcated allegation. First, she maintains that the March 25, 1975, notice of termination established both job separation and severance of the employment relationship more than seven days before the end of the academic year, thus removing her from the scope of § 27(i), which would otherwise deny her benefits. In addition, she seeks to circumvent application of the "denial period” by claiming the absence of a period "between two successive academic years or terms”. We do not agree with either assertion.

First, the most reasonable interpretation of § 27(i)(3) requires that the mere giving of notice of a future termination date does not serve to presently abrogate the employment relationship. Rather, for the simple reason that plaintiff continued to work, we perceive severance to occur on the last day of employment.

Second, it is equally clear that plaintiff was not an employee of the Bay City Schools during the summer months of 1975, and that the unemployment occurred during "a period between two successive academic years or terms”. Plaintiff contends that because she would not be reemployed in September 1975, there is no succeeding academic year. However, plaintiff’s claim that a subjective standard should be used for determining holidays, vacations, or the period between terms or school years would render § 27(i)(4) meaningless. The existence of an academic year, as envisioned by the Legislature, is to be determined by the objective criteria of the calendar established by the district, and not by the individual’s particular circumstances.

In addition, § 27(i)(1), which applies to employees of higher education institutions, provides that the denial period is inapplicable if the employee does not have a contract for the following academic year. The Legislature could have included this provision in 27(i)(3); however; it chose not to do so.

Finally, the record shows that plaintiff did, in fact, resume her work in September of 1975, thus rendering her claim moot. We therefore conclude that the circuit court properly affirmed the appeal board’s denial of benefits.

Plaintiff also urges us to find § 27(i) violative of the Federal and state equal protection clauses. Initially, we note, and plaintiff concedes, that we are concerned with neither a "fundamental right” nor a "suspect classification” requiring a strict scrutiny standard of appellate review under which the government must demonstrate a "compelling state interest”. See, e.g., Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1972), Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969). We deal here with economic and social welfare legislation, an area in which the Michigan Supreme Court has promulgated two different equal protection standards: the traditional rational basis test, and a more exacting standard whereby a clássification must possess a fair and substantial relation to the object of the legislation. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 669-670; 232 NW2d 636 (1975).

We decline plaintiffs advocation to adopt the more stringent approach. The Court in Manistee specifically noted under what circumstances the fair and substantial relation test might be employed:

"* * * [A]t least where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental, the substantial-relation-to-the-object test should be applied.
"Where a classification scheme creates a discrete exception to a general rule and has been enforced for a sufficiently long period of time that all the rationales likely to be advanced in its support have been developed, a court should fully examine those rationales and determine whether they are sound.” Manistee, supra at 671-672.

We are not persuaded that a discrete exception exists in the present case; school employees are in no way prevented from collecting benefits if they are truly unemployed. Further, the recent alterations to § 27(i) plainly reveal the legislative policies and goals of that portion of the statute to be experimental in nature.

Hence, we conclude that the instant legislation is to be examined by the traditional rational basis standard, under which it comes before us clothed with a presumption of constitutional validity. Manistee, supra at 667. The burden is on the person challenging the classification to show that it does not rest upon any reasonable basis: that it is essentially arbitrary, capricious, and fails to rationally further any legitimate state purpose. Manistee, supra at 668, Foreman v Oakland County Treasurer, 57 Mich App 231, 240; 226 NW2d 67, lv den 394 Mich 815 (1975), Grayson v Board of Accountancy, 27 Mich App 26, 31-32; 183 NW2d 424 (1970), People v Raub, 9 Mich App 114, 120-121; 155 NW2d 878 (1967). The classification will be sustained "if any state of facts reasonably can be conceived that would sustain it * * *”. Cruz v Chevrolet Grey Iron, Division of General Motors Corp, 398 Mich 117, 127; 247 NW2d 764 (1976), quoting Lindsley v Natural Carbonic Gas Co, 220 US 61, 78-79; 31 S Ct 337; 55 L Ed 369 (1911).

The purpose of the Employment Security Act is to safeguard the general welfare through the dispensation of benefits intended to ameliorate the disastrous effects of involuntary unemployment on workers and their families. MCL 421.2; MSA 17.502. It is not designed to increase the compensation of wage earners employed on a fixed, but somewhat irregular, schedule.

Had the Legislature intended that all persons would be eligible for assistance regardless of the reason for their nonworking status, it would have passed a law granting such comprehensive benefits. Instead, it chose to adopt a program denying benefits in certain instances and for certain reasons. The Legislature is not required to choose between addressing every aspect of a problem or not addressing the problem at all. Manistee, supra at 672, Van Slooten v Larson, 86 Mich App 437, 451; 272 NW2d 675 (1978).

"* * * [Consistently with the Equal Protection Clause, a State 'may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind * * *. The legislature may select one phase of one field and apply a remedy there, neglecting the others * * Williams v Lee Optical Co, 348 US 483, 489; 75 S Ct 461; 99 L Ed 563 (1955); Jefferson v Hackney, 406 US 535; 92 S Ct 1724; 32 L Ed 2d 285 (1972). Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point.” Gedulig v Aiello, 417 US 484, 495; 94 S Ct 2485; 41 L Ed 2d 256 (1974).

Thus it becomes incumbent to determine whether § 27(i) is rationally related to the stated purpose of the act. We answer in the affirmative.

Section 27(i) represents a discretionary legislative policy judgment that school districts should not be exposed to liability for payment of unemployment benefits during those periods of the year when their employees traditionally do not work. Such a policy is amply justified by the atypical character of school employment and the limited financial resources of school systems. To require that school districts pay their nonprofessional employees benefits for the periods in question would greatly increase their expenditures for unemployment compensation. The interest in maintaining a fiscally sound social welfare program by restricting the assessments which finance the system to reasonable levels has been upheld in recent years as a legitimate basis for the drawing of classifications resulting in the exclusion of various social services, including unemployment compensation. See Gedulig, supra. In Ohio Bureau of Employment Services v Hodory, 431 US 471, 491, 492-493; 97 S Ct 1898; 52 L Ed 2d 513 (1977), the United States Supreme Court, in upholding on equal protection grounds an Ohio law denying unemployment benefits to workers whose nonworking status was due to certain labor conditions, made the following observations:

"In considering the constitutionality of the statute, therefore, the Court must view its consequences, not only for the recipient of benefits, but also for the contributors to the fund and for the fiscal integrity of the fund.
"The third rationale offered by the State is its interest in protecting the fiscal integrity of its compensation fund. This has been a continuing concern of Congress and the States with regard to unemployment compensation systems. * * * It is clear that protection of the fiscal integrity of the fund is a legitimate concern of the State.”

In the case at bar, the Legislature’s action was not arbitrary, but was rather designed to safeguard the stability of school district unemployment funds. We are unable to conclude that this classification bears no relationship to the ultimate function of the act of protecting the welfare of the people of Michigan.

Nor, as plaintiff additionally contends, does the legislative exemption of state employed nonprofessional school employees in §27(i)(2), from the denial provisions of the act, operate as an impermissible differentiation between persons in the same class. Employees of the enumerated institutions are state civil service workers. As before, distinctions premised upon the greater taxing powers and broader financial resources of the state do not result in a denial of equal protection.

Affirmed.

No costs, construction of a statute being involved.

       This section was substantially rewritten in 1977. See 1977 PA 277, § 1; MCL 421.270); MSA 17.529(i).

      "(1) Benefits based on service in an instructional, research, or principal administrative capacity in an institution of higher education as defined in section 53(2) shall not be paid to an individual for a week of unemployment which begins during the period between 2 successive academic years, during a similar period between 2 regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual has a contract or contracts to perform services in such a capacity for an institution of higher education for both of the academic years or both of the terms.” MCL 421.27(i)(1); MSA 17.529(i)(1).

       With 1977 PA 277, § 1, the Legislature amended the sections of the Employment Security Act under scrutiny in this case. In essence, the amendments provide for the denial of benefits under the same circumstances as before, but only if "there is a reasonable assurance that the individual will perform the service in the period immediately following the vacation or holiday recess”. MCL 421.27(i); MSA 17.529(0. Thus, in the future, plaintiffs situated like plaintiff here would be entitled to receive unemployment benefits from the date they left their employment, where there is no reasonable assurance they would resume employment with the school system in the next academic year. Plaintiff, however, was denied benefits under the provisions of the former act.

       US Const, Am XIV, Const 1963, art 1, § 2.

       1975 PA 42, § 1, 1977 PA 277, § 1.

       See MCL 421.2; MSA 17.502 which contains the Employment Security Act’s declaration of policy and provides that:
      "The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this state.”


author: N. J. Kaufman, J.

text:
    SMITH v EMPLOYMENT SECURITY COMMISSION
    Docket Nos. 78-1351, 78-2093.
    Submitted December 5, 1978, at Detroit.
    Decided March 20, 1979.
    Leave to appeal granted, 406 Mich 1006.
    Plaintiffs, employees of Imerman Screw Products Company and members of UAW Local 12, were engaged in bargaining with Imerman regarding a new contract to replace an expiring contract. Negotiations broke down on the contract-expiration date. The employer than informed the union that it was not willing to work without a contract and that the employees would be locked out the next day. The employees indicated a willingness to work without a formal contract and to continue bargaining.
    The lockout began on June 23, 1975, and continued until July 28, 1975, when a new contract was ratified and became effective. During the period of the lockout there was no picketing by union members and the union made overtures to have its members return to work pending ratification of a new contract. The company’s general manager denied that the lockout was a layoff due to lack of work, although he stated that there had been a possibility, but nothing planned, regarding a plant shutdown around the Fourth of July holiday when such a shutdown had occurred the previous year.
    Gary Smith and other locked-out employees sought unemployment compensation benefits for the time that they were locked out. The Michigan Employment Security Commission denied the applications for benefits. A referee made a finding that the unemployment had been due to a labor dispute in active progress in which the plaintiffs were directly involved. The referee’s dgterihinations were upheld by the Michigan Employment Security Appeal Board. The appeal board’s rulings were later affirmed by the Macomb Circuit Court, Edward J. Gallagher, J., and by the Oakland Circuit Court, James S. Thorburn, J. The plaintiffs appeal. The appeal from the judgment of the Oakland Circuit Court and the appeal from the judgment of the Macomb Circuit Court were consolidated. Held:

      References for Points in Headnotes

       76 Am Jur 2d, Unemployment Compensation §§ 78, 84.

       76 Am Jur 2d, Unemployment Compensation § 81.

      The provision in the Employment Security Act which disqualifies an employee from receiving unemployment compensation benefits if the employee’s unemployment is due to "a labor dispute in active progress” includes only unemployment resulting from labor disputes in which the employee himself actively engages by refusing to work. The act was not intended to enforce a lockout by an employer by denying unemployment benefits to employees who are available for work, but who are denied it by their employer.
    Reversed, and remanded to the trial courts for orders awarding benefits to the plaintiffs.
    1. Unemployment Compensation — Disqualification — Labor Dispute — Burden of Proof.
    A person seeking unemployment compensation benefits is disqualified from receiving benefits if the unemployment is due to a labor dispute in active progress; however, for claimants to be. disqualified from receiving unemployment compensation benefits because of a labor dispute a causal connection between the dispute and the unemployment must be established and the employer bears the burden of proving that it is entitled to the labor dispute exception.
    2. Unemployment Compensation — Employment Security Act — Disqualification — Labor Dispute — Statutes — Statutory Construction.
    The provision in the Michigan Employment Security Act which disqualifies a claimant from receiving unemployment compensation benefits if the unemployment is due to a labor dispute in active progress should be narrowly construed and the definition of "labor dispute” should be limited in light of the remedial purpose of the act (MCL 421.29[8]; MSA 17.531[8]).
    3. Unemployment Compensation — Lockout — Labor Dispute — Employment Security Act.
    A lockout is not entitled to automatic designation as a labor dispute in active progress for purposes of the Employment Security Act.
    4. Unemployment Compensation — Employment Security Act — Disqualification — Dispute — Lockout — Statutes.
    The provision in the Employment Security Act which disqualifies an employee from receiving unemployment compensation benefits if the unemployment is due to "a labor dispute in active progress” includes only unemployment resulting from labor disputes in which the employee himself actively engages by refusing to work; the act was not intended to enforce a lockout by an employer by denying unemployment compensation benefits to employees who are available for work, but who are denied it by their employer (MCL 421.29[8]; MSA 17.531[8]).

      Rothe, Mazey, Mazey & Hamburger, P.C., for plaintiffs.

      Cox & Hooth (by Gilbert C. Cox, Jr., and Dan T. Ryan) for defendant Imerman Screw Products Company.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and George M. Blaty, Assistant Attorney General, for defendant Michigan Employment Security Commission.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

This case involves the application of the "labor dispute” disqualification of the Employment Security Act, MCL 421.29(8); MSA 17.531(8), to locked-out employees. From a circuit court affirmance of an adverse determination by the Michigan Employment Security Commission (MESC), plaintiffs appeal as of right. We reverse.

In May and June of 1975, plaintiffs, employees of Imerman Screw Products Company and members of UAW Local 212, were engaged in bargaining with the employer regarding a new contract to replace the old contract, which was to expire at 12:01 a.m. on June 22, 1975. Negotiations broke down in the evening of June 22, 1975. The company then informed the union that it was not willing to work without a contract and that the employees would be locked out the next day. Testimony was undisputed that the union members, unlike the employer, were willing to work without a formal contract and to continue bargaining.

The lockout began on June 23, 1975, and continued until July 28, 1975, when a new contract was ratified and became effective. During the lockout there had been no picketing by union members, and the union had made overtures to the company to have its members return to work pending ratification of a new contract. Also during this time period, some work had been carried out in the factory by supervisory and management personnel. Defendant’s general manager denied that the lockout was a layoff due to lack of work; he stated that there had been a possibility, but "nothing planned”, regarding a plant shutdown around the Fourth of July holiday, when such a shutdown had occurred the previous year.

Based on these facts, the MESC denied plaintiffs’ applications for unemployment compensation benefits. The referee made a finding that plaintiffs’ unemployment from June 23-July 28 had been due to a labor dispute in active progress in which plaintiffs were directly involved. On appeal to the Michigan Employment Security Appeal Board, the referee’s determination was upheld, and this ruling was then affirmed by the circuit courts.

The dispositive issue in this appeal is whether plaintiffs’ unemployment resulted from a "labor dispute in active progress”. The statute, MCL 421.29(8); MSA 17.531(8), provides in pertinent part:

"An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by that labor dispute, in the establishment in which he is or was last employed, or to a labor dispute, other than a lockout, in active progress, or to shutdown or start-up operations caused by that labor dispute, in any other establishment within the United States which is functionally integrated with the establishment and is operated by the same employing unit.”

In order for claimants to be disqualified from receiving unemployment compensation because of a labor dispute, a causal connection between the dispute and the unemployment must be established. Scott v Budd Co, 380 Mich 29; 155 NW2d 161 (1968). The employer bears the burden of proving that it is entitled to the labor dispute exception. Salenius v Employment Security Comm, 33 Mich App 228, 237; 189 NW2d 764 (1971). The trend is to construe narrowly the disqualification provisions of § 29 and to limit the definition of "labor dispute”, Salenius, supra, p 238, in light of the act’s remedial purpose to provide temporary assistance to workers who become unemployed through no fault of their own. MCL 421.2; MSA 17.502, Park v Employment Security Comm, 355 Mich 103, 123; 94 NW2d 407 (1959), I M Dach Underwear Co v Employment Security Comm, 347 Mich 465, 472; 80 NW2d 193 (1956).

A number of other jurisdictions, in construing language similar to that in the Michigan Employment Security Act, have found "labor dispute” to include a lockout. See Anno: Unemployment compensation: application of labor dispute disqualiñcation for beneñts to locked out employees, 62 ALR3d 437, § 10. Courts in Indiana have asked whether the negotiations have reached an "impasse” prior to the lockout, while courts in California and Utah have employed a "volitional test” which asks whether the claimants were unemployed through some voluntary conduct on their part which precipitated the lockout. 62 ALR3d 437, §§ 10(b), 11.

In Michigan, it is clear that a lockout is not entitled to automatic designation as a labor dispute in active progress. Salenius, supra, Michigan Tool Co v Employment Security Comm, 346 Mich 673; 78 NW2d 571 (1956). Michigan Courts have not confronted the precise issue presented in this case: whether locked-out employees who have not refused to work, but rather have indicated their willingness to continue in peaceful negotiations and to work without a contract, are disqualified from receiving unemployment compensation benefits pursuant to MCL 421.29(8). We think the better view in this situation is that expressed in National Gypsum Co v Administrator, Louisiana Dep’t of Employment Security, 313 So 2d 230, 233 (La, 1975):

"In view of the strong public policy of the act designed to avoid crushing hardship on unemployed workers and their families, we think the more reasonable interpretation of the disqualification to be that unemployment due to 'a labor dispute in active progress’ includes only unemployment resulting from labor disputes in which the employee himself actively engages by refusing to work.
"[T]he act was not intended to enforce a lock-out by the employer by denying unemployment benefits to employees who are available for work, but who are denied it by their employer. To deny compensation under such circumstances would not only be to deny benefits to employees unemployed through no fault of their own, but would be to add a sanction not contemplated by law to conduct by the employer designed to withhold subsistence from his workers and their families in order to force them to accept the employer’s terms.
"We thus do not believe that a labor dispute is in active progress, insofar as disqualification for unemployment benefits is concerned, when the employees are exercising their legal right through peaceful negotiation to bargain for what they deem to be better working conditions.
"The correct interpretation of the unemployment compensation act, in the light of its express policies and in the light of the general public policy in favor of peaceful bargaining negotiation, should not permit either party to provoke the award or denial of unemployment benefits in order to enforce the effect of a strike or of a lockout.”

We agree with the above reasoning. The decision of the trial court upholding the appeal board’s denial of unemployment benefits is reversed and the case remanded to the trial courts for orders awarding such benefits to plaintiffs.


author: Danhof, C.J.

text:
    CAMELOT EXCAVATING COMPANY, INC v ST PAUL FIRE & MARINE INSURANCE COMPANY
    Docket No. 78-1428.
    Submitted December 13, 1978, at Detroit.
    Decided March 20, 1979.
    Leave to appeal granted, 406 Mich 1009.
    Camelot Excavating Company, Inc., was a subcontractor on a construction project in which Priestly Contracting, Inc. was the general contractor. Priestly had entered into a surety bond agreement with St. Paul Fire and Marine Insurance Company. Priestly ceased work on the project, and Camelot attempted to collect sums still owing from Priestly. Camelot was not fully compensated, and it brought an action against St. Paul Fire and Marine, as surety, for the amount still owing. St. Paul Fire and Marine brought a third-party action against Priestly Contracting, Darrell G. Priestly, and Charles L. Langs for indemnification, and filed a motion for accelerated judgment, alleging that Camelot’s claim was barred by a provision in the payment bond which limited claims to one year from the time work on the construction project ceased. The motion was denied on the basis that the limitation provision was ambiguous and that limitation periods shorter than the general six-year statutory period are not favored. Ultimately, Camelot was granted a summary judgment on its claim, Wayne Circuit Court, Horace W. Gilmore, J. St. Paul Fire and Marine appeals both the summary judgment and the denial of its motion for accelerated judgment. Held:

    The contractual limitation provision is not ambiguous, and such limitations on claims are valid, enforceable, and in accord with public policy. In addition, the fact that Camelot is a third party to the surety contract does not make it unreasonable to enforce the limitation. The trial court’s holding that the limitation was ambiguous was erroneous, as was the grant of summary judgment based on that holding.
    Reversed and remanded.
    1. Contracts — Bonds — Private Construction Bonds — Limitation of Actions.
    Michigan statutes contain no express prohibition of a contractual limitation on suits pursuant to a private construction bond; such limitations on claims against private sureties are Valid, enforceable, and in accord with public policy.

      Reference for Points in Headnotes

       17 Am Jur 2d, Contractors’ Bonds § 124.

      2. Contracts — Bonds — Private Construction Bonds — Sureties — Limitation of Actions — Third Parties.
    No distinction should be made between the immediate parties to a private construction bond which contains a limitation on the time within which an action on the bond may be brought and a third party seeking recovery on the bond from a surety; both are bound by the contractual limitation.

      Richard A. Lenter, for plaintiff.

      Landau, Hoffert, Shatzman & Litt, P.C., for defendant.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   Danhof, C.J.

This is an action by a subcontractor against a surety for payment pursuant to a private labor and materials payment bond. On April 8, 1973, Priestly Contracting, Inc., the general contractor for a private construction project, and defendant surety signed the bond in question. Priestly Contracting thereafter subcontracted work to plaintiff. However, Priestly Contracting permanently ceased work on the construction project in April, 1974, leaving sums still owing to plaintiff.

Plaintiff filed a complaint against defendant surety on August 26, 1976. Defendant filed a motion for accelerated judgment, alleging that plaintiff’s claim was time barred by the following provision of the bond:

"No suit or action shall be commenced hereunder by any claimant:
* * *
"After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.”

The trial court ruled that the language of the above provision was ambiguous, and that it could be construed to require interpolation of the general statutory six-year period of limitations for contract actions. MCL 600.5807(8); MSA 27A.5807(8),MCL 600.5813; MSA 27A.5813. Commenting further that shorter limitations on contractual actions are not to be favorably regarded, the trial court denied defendant’s motion. Plaintiff was ultimately granted summary judgment under GCR 1963, 117.2(3) on its claim for payment pursuant to the bond. Defendant appeals from both dispositions.

We conclude that the trial court erred in ruling that the wording of the disputed contractual limitation clause is ambiguous. On the contrary, the bond clearly provides that suits thereunder must be brought within one year of the date on which the principal ceases work on the project covered, unless the controlling state law prohibits such a contractual limitation on suits pursuant to a private construction bond. Michigan statutory law contains no such express prohibition.

Furthermore, Michigan precedent has condoned such contractual limitations on claims against private sureties, holding them to be valid, enforceable, and in accord with public policy. As the Michigan Supreme Court stated in Commissioner of Insurance v Central West Casualty Co, 301 Mich 427, 432; 3 NW2d 830 (1942):

"A statutory bond is one commanded or provided by statute. In such a bond, the existing law becomes a part of the bond, omitted conditions required by law are read into the bond and conditions contrary to the law are read out of it. The doctrine of 'what is omitted will be read in and what is in conflict will be read out’ applies only to bonds required by statute. In such a bond the general statute of limitations becomes a part of the bond. In a common-law bond the parties may provide for a shorter time for bringing suit than is provided by the statute of limitations and, in general, are bound by their agreement. ” (Emphasis supplied.)

Forest Twp v American Bonding Co of Baltimore, 187 Mich 657; 154 NW 26 (1915), Ladies of the Modern Maccabees v Illinois Surety Co, 196 Mich 27; 163 NW 7 (1917). See also more generally, Bashans v Metro Mutual Ins Co, 369 Mich 141; 119 NW2d 622 (1963), Board of Governors of Wayne State University v Building Systems Housing Corp, 62 Mich App 77, 85; 233 NW2d 195 (1975), Fulton v Citizens Mutual Ins Co, 62 Mich App 600; 233 NW2d 820 (1975).

Thus, unless defendant is for some reason estopped from asserting the one-year limitation on plaintiffs suit pursuant to the bond or unless plaintiff can show that Priestly Contracting did not cease work on the project in April, 1974, plaintiffs claim is time barred.

But plaintiff insists that a distinction must be made between the immediate parties to a contract, who should be bound by any limiting contractual provisions to which they agreed, and third parties seeking recovery under the surety contract, against whom it would be unreasonable to enforce the contractual limitation. We find the distinction unpersuasive in the context of this private construction bond. There is nothing unreasonable about requiring a subcontractor to investigate its right to payment within one year after the general contractor has abandoned the project. It would furthermore be totally incongruous to hold that plaintiff herein has six years within which to commence suit on a private bond, when other claimants must by statute press their suits pursuant to a required public bond within one year of the completion and acceptance of a public works project. MCL 570.104; MSA 26.324.

The trial court erred in holding that the contractual limitation on bringing suit pursuant to the bond was ambiguous, and in granting plaintiff’s motion for summary judgment on the grounds of that erroneous ruling.

Reversed and remanded for proceedings not inconsistent with this opinion.

       Plaintiff also filed a suit for payment against the general contractor, and obtained a default judgment for $18,848 with costs and interest on July 6,1977, which has not been paid.

       See 21 Michigan Law & Practice, Suretyship, § 44, p 230.

       By contrast, MCL 570.104; MSA 26.324 specifically provides that a suit pursuant to a public works bond must be brought within one year after the completion and acceptance of the project.

       Accord, e.g., Gossen v Indemnity Ins Co of North America, 234 F2d 463 (CA 6, 1956); 12 Am Jur 2d, Bonds, § 37, p 503.

       The trial judge recognized that a private surety may limit its contractual liability to claimants to a period shorter than the otherwise applicable statute of limitations, but concluded that such foreshortening of liability was to be unfavorably viewed. The cited Michigan cases do not support this conclusion. If the parties to a private surety or insurance contract clearly agree to a time restriction on the commencement of actions, the courts generally enforce it without reluctance.

       To this end, plaintiff also asks us to examine precedent from other states. However, as one of the cases relied upon by plaintiff concludes:
      "The cases from other states are in hopeless conflict. Some hold that such contractual provisions are binding on the insured third person, while others hold that they are not. Some of them turn upon the wording of particular statutes or policies. No useful purpose would be served by citing or discussing these cases.” Olds v General Accident Fire & Life Assurance Corp, 67 Cal App 2d 812; 155 P2d 676, 683 (1945).


author: Beasley, J.

text:
    PEOPLE v HUIZAR
    Docket No. 78-1663.
    Submitted February 6, 1979, at Detroit.
    Decided March 20, 1979.
    Bryan S. Huizar was convicted, on his plea of guilty, of attempted receiving and concealing stolen property over $100. The defendant was sentenced to three-years probation with the first six months to be served in the county jail. The defendant later moved to vacate his plea and set aside the sentence. This motion was denied by the Tuscola Circuit Court, Norman A. Baguley, J. The defendant appeals. Held:

    The defendant believed from his conversation with the prosecutor, during which a plea agreement was reached, that if he entered a plea of guilty the prosecutor would recommend that the defendant be placed on probation and that if he was placed on probation he would not be sent to jail for six months. The record does not indicate that such a recommendation was made. Thus, since the prosecutor did not perform the plea bargain agreement and since, as a result of the prosecutor’s representations, the defendant, a 17-year-old youth unrepresented by counsel, believed if he were to be put on probation he would not go to jail for six months, the plea was not voluntarily made. A defendant must know the direct consequences of his guilty plea in order to plead voluntarily. The plea may be withdrawn.
    Remanded for withdrawal of the guilty plea.
    Criminal Law — Plea of Guilty — Consequences of Plea — Voluntary Plea — Withdrawal of Plea.
    A defendant must know the direct consequences of his plea of guilty, including the actual value of any commitments made to him, in order to plead voluntarily; where a defendant pleads guilty and surrenders his right to trial in apparent misapprehension of the value of commitments made to him, he should be allowed to withdraw his plea because the plea cannot be considered voluntary.
    Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 485, 505.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick R. Joslyn, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Keith D. Roberts, Assistant Attorney General, of counsel), for the people.

      Frank J. Pernicano, for defendant on appeal.
    Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Beasley, J.

Defendant was charged with larceny in a building in violation of MCL 750.360; MSA 28.592, and with receiving and concealing stolen property of a value over $100 in violation of MCL 750.535; MSA 28.803. Each of the offenses involved the same two snow tires. Pursuant to a plea agreement, defendant, then age 17 and not represented by counsel, pled guilty to the lesser included offense of attempted receiving and concealing stolen property over $100.

After defendant was sentenced to three-years probation with the first six months in the county jail, he moved to vacate his plea and set aside his sentence. The circuit court held an evidentiary hearing to determine whether defendant’s plea should be vacated for the alleged failure of the prosecutor to keep the sentence bargain relied upon by the defendant in offering his plea. His motion was denied and he now appeals as of right.

The record indicates that on the day set for defendant’s arraignment, a so-called pre-preliminary examination conference was held between the prosecuting attorney, the 17-year-old defendant and his parents. A plea agreement was reached whereby defendant would plead guilty to the lesser included offense of attempted receiving and concealing stolen property, to-wit: the two snow tires, in exchange for the dismissal of the two charges. The prosecutor indicated in writing that he would recommend probation for defendant. The prosecutor admits that no mention was made to the unrepresented defendant of the possibility that probation could include some time in the county jail.

Defendant claimed that, based on his satisfaction with this bargain, he chose to waive his right to be represented by counsel at the plea-taking hearing. The trial judge questioned defendant and the prosecutor as to any agreements that had been struck between them. Although the agreement as to dropping the principal charges was stated, nothing was said to the court by the prosecutor concerning his promise to recommend probation for defendant. Further, the prosecutor neither advised the probation department that he had agreed to recommend probation for defendant nor did he discuss with them the possibility of probation without serving time in jail.

A defendant must know the direct consequences of his guilty plea, including the actual value of any commitments made to him, in order to plead voluntarily, People v Lawson.

The Lawson Court quoted Hammond v United States, in making its determination:

" '[I]n order to plead voluntarily, a defendant must know the direct consequences of his plea, including 'the actual value of any commitments made to him’. Where, as here, counsel’s alleged advice, corroborated by the information supplied by the court, grossly exaggerated the benefit to be derived from the pleas of guilty, it would follow that the pleas were not voluntary.’ ”

In the within case, at the hearing to vacate his sentence, defendant claimed that, had he known of the possibility of spending time in jail, he would have obtained the services of an attorney and would not have pled guilty.

We are satisfied that defendant believed from his conversation with the prosecutor that if he was placed on probation he would not be sent to jail for six months, and that he understood the prosecutor would recommend to the judge that he be placed on probation. The record does not indicate that the prosecutor so recommended to the trial judge. Thus, since the prosecutor did not perform the plea bargain agreement and since, as a result of the prosecutor’s representations to this unrepresented 17-year-old, defendant believed if he was put on probation he would not go to jail for six months, we find the plea was not voluntarily made and may be withdrawn.

Remanded for withdrawal of guilty plea.

       MCL 750.92; MSA 28.287.

       People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977).

       528 F2d 15, 19 (CA 4, 1975).

        Lawson, supra, at 730.