author: V. J. Brennan, J.

text:
    WILSON v STILWILL
    Docket No. 77-4333.
    Submitted June 4, 1979, at Lansing.
    Decided September 5, 1979.
    Leave to appeal applied for.
    Plaintiffs, Irving J. Wilson and Margaret D. Wilson, brought an action against Dr. George D. Stilwill and Edward W. Sparrow Hospital Association alleging medical malpractice. The Ingham Circuit Court, Thomas L. Brown, J., directed a verdict in favor of the hospital for failure to introduce evidence of an applicable standard of care and the jury returned a verdict of no cause of action in the claim against Dr. Stilwill. Plaintiffs appeal alleging error in allowing plaintiffs’ expert witness to be questioned concerning his involvement in other malpractice cases, in defense counsel’s characterization of plaintiffs’ expert in closing argument as a professional witness and in directing a verdict in favor of the hospital. Held:

    1. The testimony concerning the plaintiffs’ expert witness’s involvement in other malpractice cases was probative on the question of the weight to be given the expert’s testimony and was properly admitted.
    2. Defense counsel’s characterization of a witness as a professional witness was a reasonable inference drawn from the evidence where the testimony indicated that 40% of the witness’s income was derived from evaluating medical disabilities and that he had been involved in various aspects of medical malpractice in at least five cases.
    3. The trial court did not err in directing a verdict in favor of the hospital where the evidence showed that the plaintiff suffered a bacterial infection following treatment but where there was no testimony establishing that the method of treatment rendered by the hospital was negligent or contrary to any professional standard of conduct. Any jury verdict favorable to plaintiffs would have been based on mere speculation as to the cause of the infection.
    Affirmed.
    References for Points in Headnotes

       31 Am Jur 2d, Expert and Opinion Evidence §§ 181, 183, 184.

       75 Am Jur 2d, Trial § 260.

       57 Am Jur 2d, Negligence §§ 6, 7.

      1. Witnesses — Medical Malpractice — Expert Witnesses — Prior Experience.
    It was not error in a malpractice action for counsel for a defendant to elicit from a plaintiffs expert testimony concerning his involvement in other malpractice cases; such testimony is probative on the question of the weight to be given the expert’s testimony by the trier of fact.
    2. Trial — Inferences — Closing Argument.
    Reasonable inferences may be drawn from the evidence by counsel in closing argument.
    3. Negligence — Medical Malpractice — Standard of Conduct.
    A trial court did not err in directing a verdict in favor of a defendant hospital in a malpractice action where the evidence showed that the plaintiff suffered a bacterial infection following treatment but where there was no testimony establishing that the method of treatment rendered by the hospital was negligent or contrary to any professional standard of conduct.

      Newman & Mackey, for plaintiffs.

      Fraser, Trebilcock, Davis & Foster (by Eugene F. Townsend and C. Mark Hoover), for defendant Stilwill.
    Before: M. F. Cavanagh, P.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   V. J. Brennan, J.

Plaintiffs, Irving J. and Margaret D. Wilson, appeal by right from a lower court order directing a verdict in favor of defendant Edward W. Sparrow Hospital Association and from a jury verdict of no cause of action in plaintiffs’ suit against defendant Dr. George D. Stilwill.

Plaintiffs raise three issues in this appeal. The first pertains to a line of questioning directed to plaintiffs’ expert, Dr. Waldo Badgley, by counsel for defendant Dr. Stilwill on cross-examination.

It was elicited from plaintiffs’ expert that 40% of his practice had to do with disability evaluation; that he had been involved in two or three cases in which there was suspected malpractice; that one of these cases occurred in Grand Haven and in that particular case the present plaintiffs’ attorney was the counsel for the plaintiffs. In addition plaintiffs’ expert was also involved in a case concerning the Mason General Hospital, and in that particular case the plaintiffs’ attorney was the same attorney representing plaintiffs in the instant case. It was only after the doctor was questioned about his participation in a malpractice suit against Foote Hospital in Jackson,. Michigan, that counsel for plaintiffs objected to this line of questioning. The trial court then requested counsel for Dr. Stilwill to relate the latter case to the witness’s competency to testify in the instant action. When counsel could not do so, plaintiffs’ objection was sustained.

Following the ruling by the trial court on his objection, counsel for plaintiffs did not request a curative instruction to the jury. In Treece v The Greyhound Bus Company, 63 Mich App 63, 66; 234 NW2d 404 (1975), the Court addressed a similar factual situation. In that case, the expert offered by the plaintiffs was asked on cross-examination about his status in the medical community and his license to practice at a particular hospital. He was further questioned about his relationship with counsel for the plaintiffs. The objections by plaintiffs’ counsel to each of these questions were sustained by the trial court. On appeal, plaintiffs asserted that the asking of these questions was so prejudicial as to require reversal notwithstanding the trial court’s sustaining of the objections. The Court disagreed and, with particular regard to the last question, held that all of the questions were probative of the weight of the doctor’s testimony and, in any event, that the failure of plaintiffs’ counsel to request a curative instruction waived any error on appeal.

Although the Supreme Court has held that it is reversible error to attack a witness on the basis of innuendo and unfounded accusations, Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339; 273 NW2d 75 (1978), that is not the situation in the case at bar. In Kern a defense counsel attempted to show that the plaintiffs’ counsel had conspired with the plaintiffs’ medical expert to provide "bought and paid for” untrue and collusive testimony from three out-of-state physicians. The Supreme Court found that by the time the jury retired to deliberate the defense counsel had succeeded in conveying the message that plaintiffs would not have relied entirely on out-of-state physicians to testify had their case been meritorious. The Court concluded that this message was a false one, and that the trial tactics on which it was based were prejudicial to the plaintiffs. Significantly, the Supreme Court’s opinion noted but did not cite as error the questioning by defendants’ counsel concerning "the amount of testimony Dr. Kaplan [a witness on behalf of the plaintiffs] had provided in malpractice cases and his experience in medical-legal matters”, Kern, supra, 348.

In the present case no error was committed below by the elicitation from plaintiffs’ expert testimony concerning his involvement in other malpractice cases. This testimony was probative on the question of weight to be given by the trier of fact.

The next issue relates to an alleged characterization of plaintiffs’ doctor as a "professional witness” by counsel for defendant Dr. Stilwill in his closing argument to the jury. In his closing argument to the jury, counsel for the defendant doctor stated:

"In an attempt, ladies and gentlemen, to find out the most probable cause of Mr. Wilson’s injury we went to the two largest at least medical institutions in the State of Michigan. We went to the University of Michigan and we went to Henry Ford Hospital. And we got there, and we went to the sub-department of internal medicine, the medical practice of infectious diseases. We did not go to professional witnesses; we went to professional physicians qualified better than any other man in the State of Michigan, to the best of our knowledge, to determine the answers to the questions. What caused the infections; and, secondly, could the infection work so fast as to cause paralysis in Mr. Wilson’s hand which was evidenced by the time he regained full consciousness? We gave them all of the facts, and in Cox’s [one of the defendant doctor’s experts] hypothetical we used facts most favorable to the Plaintiff, and he said there was no evidence of malpractice.”

Counsel for plaintiffs did not immediately object to this statement but did request a curative instruction sometime later. The trial court denied plaintiffs’ request holding that the statement made no reference to plaintiffs’ expert and, even if it did, it would have constituted fair comment under all the circumstances of the case. We agree with the trial court’s ruling.

Assuming arguendo that the statement was directed toward plaintiffs’ expert, reversible error was not committed. In closing argument, reasonable inferences from the testimony may be drawn by counsel. Grewette v Great Lakes Transit, 49 Mich App 235; 211 NW2d 531 (1973). This comment was warranted from the testimony of plaintiffs’ expert that approximately 40% of his income was derived from evaluating medical disabilities and that he had been involved in various aspects of medical malpractice in at least five cases. The statement of counsel amounted to a fair characterization of the expert witness.

The final issue raised is whether the lower court erred in directing a verdict in favor of the defendant hospital on the grounds that plaintiffs had failed to establish a prima facie case because no expert testimony concerning the applicable standard of care was introduced.

Plaintiffs argue on appeal, as they did below, the applicability of the doctrine of res ipsa loquitur, in that the mere occurrence of an infection in plaintiff Wilson’s arm is sufficient to establish a case for the jury. Plaintiffs further argue that there was no necessity to introduce any expert testimony at trial to establish a standard of care because the liability of the defendant hospital was not predicated upon the breach of a professional standard of care but upon the breach of ordinary care. We disagree.

Under the doctrine of res ipsa loquitur a rebut-table presumption that a defendant was negligent arises upon proof by a plaintiff that the instrumentality causing a plaintiff’s injury was in the defendant’s exclusive control and that the accident was one that ordinarily does not happen in the absence of negligence. Rohdy v James Decker Munson Hospital, 17 Mich App 561; 170 NW2d 67 (1969), citing as authority Gadde v Michigan Consolidated Gas Co, 377 Mich 117, 124; 139 NW2d 722 (1966). In Rohdy, the Court discussed the applicability of the doctrine to a hospital malpractice suit factually similar to the case at bar. The Court held that the doctrine did not apply to the case before it because the mere occurrence of an infection is not enough to imply negligence. The Court further found that on the evidence presented one could only speculate or conjecture that the infection occurred as a result of negligence. Consequently, the lower court’s grant of the defendant hospital’s motion for judgment notwithstanding the verdict was affirmed.

In the present case, as in Rohdy, the evidence in the record merely shows that the plaintiff suffered a bacterial infection following a hospital treatment. There was no testimony establishing that the method of treatment rendered by the hospital was negligent or contrary to any professional standard of conduct. Any jury verdict favorable to plaintiffs would have been based on mere speculation as to the cause of the infection.

Affirmed.


source: Caselaw Access Project

author: V, J. Brennan, J.

license: Public Domain

text:
    WADE v STATE HIGHWAY COMMISSION
    Docket No. 78-446.
    Submitted June 5, 1979, at Lansing.
    Decided September 5, 1979.
    Leave to appeal applied for.
    Sandra K. Wade, administratrix of the estate of David E. Hawkins, brought an action against the Michigan State Highway Commission alleging negligent design of the bridge on Interstate 75 crossing the Rouge River in the City of Detroit. The proofs established that decedent was killed when he was struck by a semi-trailer truck in the right-hand travel lane, after he had stepped from his place of safety in front of his disabled automobile in the right-hand refuge lane. The Court of Claims, Horace W. Gilmore, J., held that defendant had been negligent in the design of the highway but entered a judgment of no cause of action on the basis of the determination that plaintiffs decedent had been contributorily negligent. Plaintiff filed a motion for new trial requesting, for the first time, that the court apply the doctrine of comparative negligence. The motion for a new trial was denied. Plaintiff appeals. Held:

    1. The statutory obligation to maintain highways in a reasonably safe condition is not a legislatively-imposed safety regulation of the type which, if breached, will render the doctrine of contributory negligence inapplicable. A motorist who misuses a highway is answerable for his own negligence, which may bar recovery.
    2. The record supports the trial court’s finding that decedent’s injuries were caused by his own negligence.
    3. The Supreme Court, in replacing the doctrine of contributory negligence with the doctrine of comparative negligence, has specifically held that comparative negligence will be applied retrospectively in cases pending on appeal on the date of the Supreme Court’s decision only if a request for application of the doctrine of comparative negligence was made to the trial court prior to submission to the trier of fact.
    Affirmed.
    References for Points in Headnotes

       40 Am Jur 2d, Highways, Streets, and Bridges § 555 et seq.

       5 Am Jur 2d, Appeal and Error § 566 et seq.

      1. Negligence — Contributory Negligence — Highways — Maintenance and Repair — Statutes.
    The statutory obligation of the state to maintain highways in a reasonalby safe condition is not a legislatively-imposed safety regulation of the type which, if breached, will render the doctrine of contributory negligence inapplicable; rather, a motorist who misuses a highway is answerable for his own negligence, which may bar recovery (MCL 691.1402; MSA 3.996[102]).
    2. Negligence — Contributory Negligence — Comparative Negligence — Request — Retroactive Application — Preservation.
    The Supreme Court, in replacing the doctrine of contributory negligence with the doctrine of comparative negligence, has specifically held that comparative negligence will be applied retroactively in cases pending on appeal on the date of the Supreme Court’s decision only if a request for application of the doctrine of comparative negligence was made to the trial court prior to submission to the trier of fact; therefore, a request for application of the doctrine of comparative negligence made for the first time in a motion for a new trial does not operate to preserve the issue for appeal.

      Hurwitz & Karp (by Richard Wygonik), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Carl K. Carlsen and Myron A. McMillan, Assistants Attorney General, for defendants.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   V, J. Brennan, J.

Plaintiff, Sandra K. Wade, administratrix of the estate of David E. Hawkins, appeals by right a judgment of no cause of action rendered by the Court of Claims in a negligence suit brought against the State Highway Department. After trial, the Court of Claims found that the highway at the scene of decedent’s death had been improperly designed. However, plaintiff was denied recovery when the court also found that the decedent had acted in a contributorily negligent manner.

Plaintiffs decedent died as a result of injuries sustained when he was struck by a semi-trailer truck on the River Rouge bridge on 1-75 in the City of Detroit on November 14, 1974. The decedent had been driving on one of the four northbound lanes of 1-75 when his automobile developed trouble. Thereupon, the decedent drove his automobile onto the refuge lane on the extreme right-hand side of the freeway on the bridge.

The decedent did not use the entire width of the refuge lane, nine feet six inches, when driving his automobile onto it. His automobile, which was approximately six feet four inches wide, came to rest with its left wheel approximately 6 to 8 inches into the travel lane of the highway.

After stopping the automobile, the decedent got out of it, opened its hood and examined the engine. As to decedent’s actions immediately before being struck, the lower court found:

"* * * I Wni so find that Mr. Hawkins, after putting the hood down, moved directly into the traffic lane and was in the traffic lane to the extent of at least four feet into the travel lane, if not more, when he was struck, and that he, at that time when both Mr. Kadar and Mr. Hall, the truck driver, passed him, he was in a position of safety in front of the car putting down the hood of the car; that he thereafter left the front of the car, moved at least four feet into the travel lane at which time he was struck either by the front portion or by the side of the truck. But the important fact, the significant fact, was that he was in a position of safety, and almost immediately thereafter moved into the travel lane and was struck by the truck, causing the injuries eventually resulting in his death.”

The primary issues at trial were whether the highway refuge lane was negligently designed to be too narrow and whether the plaintiff’s decedent was contributorily negligent. The lower court answered both of these questions in the affirmative finding that the highway refuge lane should have been at least 12 feet wide and that plaintiff’s decedent was guilty of contributory negligence:

"I think therefore that there is no question in this case but what the plaintiff decedent was guilty of contributory negligence in going into that road immediately after putting down the hood, and I think there is no question but what that contributory negligence of the plaintiff in going four feet into the road immediately after putting down the hood is a proximate cause of the injury here. So even though I find that the State of Michigan did not maintain this highway in a reasonable manner and fit for travel because of the lack of adequate refuge, not constructed in a manner reasonably safe and fit for travel because of the inadequate refuge lanes, I think the plaintiff is clearly guilty of contributory negligence and that that contributory negligence was clearly a proximate cause of the injury and subsequent death, and therefore, for that reason, I will have to order a judgment of no cause for action in the matter.”

The sole issue on appeal is the applicability of the doctrine of contributory negligence to the instant action.

First, plaintiff invites us to extend the holding in Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974), to the facts in the present case. We decline to do so.

In Funk, supra, the Court held that the defense of contributory negligence is inapplicable where a defendant employer breaches its duty to provide safety equipment resulting in injury to a plaintiff employee. The rationale behind this decision is evident from the following quote:

"'Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarecely in a position to protect themselves from accident. They usually have no choice but to work with the equipment at hand, though danger looms large. The legislature recognized this and, to guard against the known hazards of the occupation, required the employer to safeguard the workers from injury caused by faulty or inadequate equipment. If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified.’ Koenig v Patrick Construction Corp, 298 NY 313, 318-319; 83 NE2d 133, 135 (1948).” Id., at 113-114.

The plaintiff contends that the breach of the statutory duty to maintain highways in a reasonably safe condition, MCL 691.1402; MSA 3.996(102), is in the same category as above thus rendering the doctrine of contributory negligence inapplicable. We disagree.

Initially we point out that a motorist who misuses a highway is answerable for his own negligence which could operate to bar recovery. Detroit Bank & Trust Co v Dep’t of State Highways, 55 Mich App 131; 222 NW2d 59 (1974). Moreover, the critical factor in Funk, supra, was the employee’s lack of choice in undertaking hazardous on-the-job activity. Here that factor is absent. The decedent could have used an emergency phone which was located some 500 feet away or could have waited for traffic to clear before moving from his position of safety. The record supports the lower court’s finding that the decedent’s injuries were caused by his own negligence.

We next must ascertain whether the doctrine of comparative negligence adopted by the Supreme Court in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), applies retroactively to the case at bar.

The limited retroactive effect of Placek is set forth as follows:

"Therefore, we hold the rule announced today applicable to the instant case and all appropriate cases in which trial commences after the date of this opinion including those in which a retrial is to occur because of remand on any other issue. Further, we ñnd comparative negligence applicable to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal. Finally, comparative negligence shall be the applicable rule in any case commenced but not submitted to the trier of fact prior to the date of this decision, but in no case shall it apply unless there is an appropriate request by counsel prior to submission to the trier of fact. ” Id., at 667-668. (Emphasis added.)

An examination of the lower court record and transcript in the case at bar indicates that plaintiff did not request the lower court to apply the doctrine of comparative negligence at trial. The applicability of the doctrine was raised in plaintiff’s motion for new trial, however, this does not operate to preserve the issue for appeal where it was not first raised prior to submission to the trier of fact. Accordingly, Placek does not apply retroactively to the present case.

Affirmed.

       Our review of the record indicates the contrary. A nine foot six inch refuge lane does not amount to negligent design and construe tion by the Highway Department.


author: Danhof, C.J.

text:
    CRYSTAL v HUBBARD
    Docket No. 78-2189.
    Submitted June 4, 1979, at Lansing.
    Decided September 5, 1979.
    Leave to appeal applied for.
    Jackie Lynn Hubbard, plaintiffs decedent, died when the automobile in which she was riding with her husband, defendant Steven C. Hubbard, collided with another vehicle operated by defendant Steven T. Komar. Larry Crystal, Mrs. Hubbard’s father, was appointed administrator of her estate and brought a wrongful death action against defendants in the Genesee Circuit Court for, among other things, the personal losses sustained by Mrs. Hubbard’s five surviving siblings, her mother and himself. Defendants objected to plaintiffs claims on behalf of the siblings and the trial court, Philip C. Elliott, J., allowed all claims to be submitted to the jury, which returned a verdict specifying nothing for the mother and an amount for decedent’s father and for each of her five siblings, as well as for funeral expenses and pain and suffering. The court entered judgment on the aggregate amount. Defendants appeal. Held:

    The words "next of kin” as employed by the wrongful death statute mean "nearest blood relation” and restrict the "class who, by law, would be entitled to inherit”. Thus, siblings of a deceased who was survived by her parents may not recover under the wrongful death statute. Apart from a surviving spouse, no person not next of kin to a decedent may participate in an action for wrongful death.
    Judgment vacated and cause remanded with instructions.
    Torts — Wrongful Death — Statutes — Definitions — Next of Kin.
    The words "next of kin” as employed by the wrongful death statute mean "nearest blood relation” and restrict the "class who, by law, would be entitled to inherit”; thus, siblings of a deceased who was survived by her parents may not recover under the wrongful death statute; apart from a surviving spouse, no person not next of kin to a decedent may participate in an action for wrongful death (MCL 600.2922; MSA 27A.2922).

      Reference for Points in Headnote
    22 Am Jur 2d, Death § 47 et seq.

      Bebout, Potere, Cox, Hughes & Cadieux, for plaintiff.

      Stiles, Fowler, Dudley & Tuttle, for defendants.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Danhof, C.J.

Jackie Lynn Hubbard died when the automobile in which she was riding with her husband, defendant Steven Hubbard, collided with another operated by defendant Komar. Ms. Hubbard’s father was appointed administrator of her estate and brought this action under the wrongful death statute, seeking recovery for the funeral and burial expenses for which the estate was liable, for the pain and suffering which preceded Ms. Hubbard’s death shortly after the accident and for the personal losses sustained by Ms. Hubbard’s five surviving siblings, her natural mother and himself. The trial was directed solely at the determination of damages, the defendants having admitted liability for the death.

The defendants objected before trial to the plaintiff’s claims for damages on behalf of the siblings, asserting that the statute allowed recovery only for the parents’ injuries. The trial court allowed the plaintiff to prove and submit to the jury the claims of all the family members, devising and submitting to the jury a verdict form providing for specification of the amount of the verdict deemed to represent the loss of each claimant. The verdict was rendered accordingly, the jury completing the form as follows:

"Form of Verdict
We, the jury, find the following damages:
1. Funeral and burial expense $ 1,433.55
2. Reasonable compensation for the pain and suffering by Jackie Lynn Hubbard, while she was conscious during the time between her injury and her death $10,000,00
3. Loss of society, companionship and nurture suffered by her father Larry Crystal as a result of his daughter’s death $25,000.00
4. Loss of society, companionship and nurture, as a result of her daughter’s death suffered by her mother Delores Hess $
5. Loss of society and companion ship as a result of their sister’s death suffered by:
Deborah Weis (sister) $ 1,000.00
Larry Wayne Crystal (brother) $ 1,000.00
Donald Crystal (brother) $ 1,000.00
Cindy Tucker (sister) $20,000.00
Kimberly Crystal (sister) $20,000.00”

Upon this verdict the trial court entered a single judgment for the plaintiff in the amount of $79,433.55, with interest and costs. This appeal has preceded the certification of the judgment to the probate court for distribution.

The research of the parties and of this Court has revealed no decision in which the right of siblings to participate in a wrongful death action has been defined. In deciding this matter, we bear in mind that the wrongful death statute is a remedial act intended to provide compensation to persons whose injuries are real but of a type not actionable at common law. See Wycko v Gnodtke, 361 Mich 331; 105 NW2d 118 (1960), and Thompson v Ogemaw County board of Road Comm’rs, 357 Mich 482; 98 NW2d 620 (1959). We also note that, there having been no common law right of recovery in the survivors of a person wrongfully killed, the sole source of rights in such a case is the statute. Courtney v Apple, 345 Mich 223; 76 NW2d 80 (1956).

The form of the statute applicable to this action is that fixed by 1971 PA 65, which provides in pertinent part:

"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased. Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total loss suffered by the surviving spouse and each of the next of kin of such deceased persons, as shown by the evidence. After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total loss suffered by the surviving spouse and next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.”

The parties have accurately identified MacDonald v Quimby, 350 Mich 21; 85 NW2d 157 (1957), as the authority most capable of illuminating the issue presented in this appeal. In that case, the administratrix, widow of the decedent, brought an action under the statute on behalf of herself and the decedent’s minor children. In the trial court, the decedent’s financially dependent mother unsuccessfully sought to compel the administratrix to represent her claim along with those of the widow and children. The action proceeded to a consent judgment between the administratrix and the defendant.

On appeal, the administratrix maintained that the decedent’s mother was not his "heir at law” due to the survival of the wife and children, was not entitled to share in the distribution of the proceeds of the action and, therefore, had no right to present her claims through the administratrix. The mother claimed that the right to participate was granted her by the statutory provision for distribution of the proceeds of the action to the "next of kin” of the decedent.

The case at bar adds to MacDonald the claims of brothers and sisters who, due to the survival of the decedent’s natural parents, are neither heirs at law nor next of kin.

In MacDonald, the Court began its opinion with the observation that the wrongful death statute had been significantly amended less than one year after the court’s reluctant decision of In re Venneman’s Estate, 286 Mich 368; 282 NW 180 (1938). Among the important changes the Legislature had made, the Court noted the following:

"(1) The words 'next of kin’ were not mentioned in the act before amendment, and were inserted 5 times in the amended section.
"(2) Approximately the first half of the amended section does not discuss or provide for distribution and in this half there is no reference to heirs-at-law or next of kin and those entitled to damages are described as a 'class (emphasis ours) who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.’ The word 'class’ was not used in the act before amendment.
"(3) That the title of the amended act adds the words 'to prescribe the measure of damages recoverable and the distribution thereof; and to repeal inconsistent acts.’
"(4) In the amended act when the words 'next of kin’ are used, they are in each of the 5 occasions coupled with the word 'spouse,’ as follows: 'surviving spouse and next of kin;’ 'surviving spouse and all of the next of kin;’ 'the surviving spouse and each of the next of kin;’ 'surviving spouse and next of kin;’ and 'surviving spouse and the next of kin.’ Neither the words 'surviving spouse’ or 'next of kin’ are found in the act before amendment.” 350 Mich 21, 26-27.

Approaching the critical issue in the case, the Court wrote:

"What does the term 'next of kin’ signify? 51 CJS 453 answers this question as follows:
" 'Primarily, and under both the common law and the civil law, the phrase "next of kin” signifies nearest blood relation; and this is the technical, legal, and literal meaning of the term.’
"A note in 15 LRA 300 defines 'next of kin’ by stating:
" 'The words "next of kin” mean blood relatives. Jones v. Oliver, 38 NC 369. * * *
" 'The words "next of kin” in a will mean the nearest blood relations and not all those who would take under the statute of distributions. Fargo v. Miller, 150 Mass 225 (22 NE 1003, 5 LRA 690); Swasey v. Jaques, 144 Mass 135 (10 NE 758, 59 Am Rep 65).’” 350 Mich 21, 31.

Addressing the administratrix’s contention that the statute employed "next of kin” so as to mean only "heirs at law” (an interpretation which would have produced no greater class of beneficiaries than that defined in the older version of the statute), the Court held:

"Appellees admit that when a layman uses the term 'next of kin’ in his will he would 'be expected to refer to degrees of kinship and have reference to the meaning of the term according to the civil law,’ but contend that an opposite result is reached when the term is used in the statute.
"We cannot agree with appellees’ contention that 'heirs at law and next of kin are synonymous terms,’ or that for this Court to rule otherwise would delete and make inoperative the words found in the first half of the amended section 'that such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.’
"The petitioning mother was of a class who would be entitled to inherit the personal property of the deceased had he died intestate. The fact that she would not inherit if he died intestate leaving a wife and children would not eliminate her from that class.” 350 Mich 21, 32.

In the case at bar, the administrator argues that the effect of MacDonald is to define the class of persons entitled to participate in a wrongful death action so as to include all persons "who, by law, would be entitled to inherit the personal property of the deceased, had he died intestate” and relies upon the MacDonald Court’s statement that "the fact that [the mother] would not inherit if [her son] died intestate leaving a wife and children would not eliminate her from that class”. The defendant points out that only the rights of a person who was next of kin to the decedent were before the Court in MacDonald and that the class of potential beneficiaries was "expanded” in that case only sufficiently to admit persons who were not the decedent’s heirs at law but who were his next of kin.

We must decide in this appeal the question which MacDonald leaves unanswered: whether the statutory term "next of kin” fixes the minimum membership of "that class of persons who, by law, would be entitled to inherit the personal property of the decedent had he died intestate” or serves the additional function of excluding from class membership those persons not also claiming the civil law status of next of kin. The dispute brought before the Court in MacDonald required it to decide only that the first proposition was true.

It is clear, as the plaintiff argues, that the MacDonald Court employed "next of kin” as an aid to its interpretation of the crucial terms, "that class who, by law, would be entitled to inherit”. If only this aspect of the MacDonald reasoning were brought to bear on the issue in the case at bar, we could easily conclude that "next of kin” serves only this function and is therefore to be viewed as fixing only the lower limit of the class of persons who may seek relief in actions of this kind.

However, we are constrained to note that the MacDonald Court was called upon by the intervening dependent mother only to release her from the "heir at law” limitation on her rights, which had apparently been carried by the lower court from the older version of the statute. We also note the Court’s deliberate adoption of the civil law meaning of "next of kin” in contrast with Mr. Justice Black’s preferred "blood relative” equivalent of that term. This deliberate resort to the civil law convinces us that while the "class of persons who, by law, are entitled to inherit” was "opened” by the legislative employment of "next of kin” in the same paragraph, that class was expanded only to include those persons who are next of kin according to the civil law meaning of the term. We are unable to find in the statute any words which can free "next of kin” of its ordinary restrictive meaning as that term had served in MacDonald to release from its confinement "that class of persons who, by law, are entitled to inherit”. Thus we hold that, apart from the surviving spouse, no person not next of kin to the decedent may participate in an administrator’s action under the statute. Ms. Hubbard’s siblings not being her next of kin, the trial court erred in taking evidence of their losses and submitting to the jury the administrator’s claims on their behalf.

That portion of the judgment representing the claims of the siblings is shown by the jury’s verdict to total $43,000. Taking into account the unchallenged post-judgment remittitur of $5,000, the amount of the greatest judgment supported by the law is $31,433.55.

The judgment of the circuit court is vacated, and the cause remanded for entry of judgment in the amount set forth above.

       MCL 600.2922; MSA 27A.2922.

       The parties agreed that the husband’s responsibility for the death precluded him from sharing in the administrator’s recovery.

       A post-trial order of remittitur reduced the amount of the award representing the loss of the father by $5,Q00. That order is not at issue in this appeal.

       See MCL 600.2922(2); MSA 27A.2922(2) and MCL 702.115; MSA 27.3178(185), now MCL 700.2222; MSA 27.5222.

       The changes wrought in the statute in the years since MacDonald was decided do not reduce the usefulness of that decision in resolving the question presented today.

       See MCL 702.92; MSA 27.3178(162).

       1939 PA 297, effective 6/20/39. The amendment produced the version of the statute addressed in MacDonald.

      In Venneman, the widow administratrix was forced to share the proceeds of a settled wrongful death action with the decedent’s estranged son. The son, a product of a former marriage, had suffered no "pecuniary loss” from his father’s death, but was entitled to recover because he was an "heir at law” of the decedent.

       That the Court meant to employ in its analysis the civil law meaning of "next of kin” is illustrated by the contrasting use of that term in the concurring opinion of Mr. Justice Black’s, who wrote:
      "Any 'next of kin,’ i.e., blood relative, is a rightful beneficiary in such case provided he or she is shown to have been dependent in fact or law on the decedent when death occurred and is a member of the statutory 'class’ from which, in the variant circumstances of succession, the inheritor or inheritors of the personal estate of one dying intestate are selected.” 350 Mich 21, 34.

       The statute is silent on the propriety of such individualized jury "verdicts” as were employed in the case at bar. Clearly, such a statement from a jury can never be more than advisory. The trial judge is never released from his obligation to "advise the probate court by written opinion" of the proportion of losses suffered by each surviving next of kin. Nor is the probate court ever freed from its obligation to finally determine that apportionment. MCL 600.2922; MSA 27A.2922. Because the courts’ duties of apportionment do not appear to be for the benefit of defendants or of administrators qua administrators, the trial court’s practice can have done no harm to the parties before the court in the case at bar. Cf., Hix v Besser Co, 386 Mich 499; 194 NW2d 333 (1972).


text:
    WENDLAND v CITIZENS COMMERCIAL & SAVINGS BANK
    Docket No. 78-2365.
    Submitted June 8, 1979, at Lansing.
    Decided September 5, 1979.
    Leave to appeal denied, 407 Mich —.
    Florence P. Wendland is the widow of Frederick Wendland, who owned Wendlands’ Apparel, Inc. Florence was the nominal vice-president of the corporation but performed no corporate duties and allowed her husband to handle all of the couple’s financial affairs until his death in 1976. Citizens Commercial & Savings Bank had loaned the Wendlands in excess of $300,000 over the years. When the business began to lose money Citizens Bank decided to call in these loans unless the Wendlands turned over certain collateral as security for the debt. Stock certificates, which were Florence’s sole and separate property, were executed in blank by Florence and delivered to the bank as a pledge to secure the Wendlands’ debt. In 1977, Florence brought an action against Citizens Bank seeking cancellation and rescission of her pledge on the theories that her separate property could not be used as collateral for the jointly executed notes which were the basis of the bank loans to the Wendlands and that the circumstances surrounding her execution of the stock assignments and promissory notes constituted a fraud. Summary judgment for defendant, Genesee Circuit Court, Harry B. McAra, J. Plaintiff appeals. The issue is whether, under the married women’s property act, a married woman may pledge her solely owned stock as security for a promissory note signed jointly by her and her husband, or whether the common-law disabilities of coverture still apply to render such a pledge of her separate property void ab initio and unenforceable. Held:

    1. Plaintiff is not entitled to the return of her stocks. The protective rules of coverture, that a married woman may not act as a surety for the debt of another and cannot contract to become personally liable on a debt unless some consideration flows directly to her separate estate, do not apply to a married woman’s pledge of her separate property. Plaintiff’s pledge of stocks falls within this exception. Defendant has the right to satisfy any debt remaining on the Wendlands’ jointly executed promissory notes out of plaintiffs pledged securities.

      References for Points in Headnotes

       41 Am Jur 2d, Husband and Wife §§ 213-218.

       41 Am Jur 2d, Husband and Wife § 160.

      2. Plaintiffs allegations are insufficient to establish a claim of fraud. The fact that she paid no attention to financial affairs is not sufficient. Furthermore, she failed to establish that she received any inducement or acted under any fraudulently promoted misapprehension of the circumstances surrounding her signature.
    Affirmed.
    1. Husband and Wife — Married Women — Contracts — Separate Estates — Suretyship — Personal Property — Pledges.
    A married woman may not act as surety for the debt of her husband and she cannot contract to become personally liable on a debt unless some consideration flows directly to her separate estate; there is, however, a distinction between contracts for personal liability on a debt and contracts conveying a particular interest in separate property as security for a debt, and while a married woman may not become a surety for her husband and thereby incur personal obligation, there is no legal objection to a pledge of her property, including stocks, to secure his debt.
    2. Fraud — Stock Certificates — Assignments — Fraudulent Inducement — Burden of Proof.
    Allegations are insufficient to establish a claim of fraud where there is no proof of inducement or that the claimant acted under any fraudulently promoted misapprehension of the circumstances surrounding her signature on an assignment of stock certificates as security for her and her husband’s joint debt.

      Cumings & Johnston, for plaintiff.

      Winegarden, Booth, Ricker, Shedd & Haley, for defendant.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Danhof, C.J.

This case presents a significant issue concerning the extent to which contractual disabilities of coverture stemming from our common-law legal heritage continue to restrict women under the married women’s property act, MCL 557.1; MSA 26.161, and the cases interpreting that act.

Plaintiff is the widow of Frederick Wendland, who was proprietor and sole stockholder of a now defunct chain of stores in Flint, Michigan, incorporated as Wendlands’ Apparel, Inc. Plaintiff was the nominal vice-president of the corporation, but performed no corporate duties and allowed her husband to handle all of the couple’s financial affairs until his death on June 23, 1976.

Over the years, the Wendlands had borrowed in excess of $300,000 from defendant bank on jointly executed, personal unsecured notes. Defendant customarily deposited the proceeds of these loans directly into the account of Wendlands’ Apparel, Inc. During the early 1970’s, the business began consistently losing money and defendant eventually requested security for the Wendlands’ debt. One of defendant’s officers informed Mr. Wendland that unless he turned over possession of certain securities comprising the bulk of the Wendlands’ net worth, defendant would call in the loans. These securities were actually plaintiff’s sole and separate property.

Mr. Wendland personally delivered the securities to defendant in two blocks, one in 1974 and one in 1975, each stock certificate being accompanied by a stock assignment executed in blank by plaintiff. Although this procedure was sufficient to absolutely transfer the securities to defendant, MCL 440.8309; MSA 19.8309, the parties do not dispute that the transfer was intended as a pledge of plaintiffs stock to secure the Wendlands’ joint debt.

In 1977, plaintiff instituted this action seeking cancellation and rescission of her stock assignments to defendant on the theories that her separate property could not be used as collateral for the jointly executed notes and that the circumstances surrounding plaintiffs execution of the stock assignments and promissory notes constituted a fraud upon her. After plaintiff and two of defendant’s employees had been deposed, the trial court granted defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1). Plaintiff appeals as of right.

The pivotal legal issue is whether, under the married women’s property act, MCL 557.1, a married woman may pledge her solely owned stock as security for a promissory note signed jointly by her and her husband, or whether the common-law disabilities of coverture still apply to render such a pledge of her separate property void ab initio and unenforceable. If the latter proposition is true, plaintiff is entitled to the return of her stocks. If not, defendant has the right to satisfy any debt remaining on the Wendlands’ jointly-executed promissory notes out of plaintiffs pledged securities, pending our secondary inquiry into whether a fraud was perpetrated on plaintiff by defendant or her husband.

The roots of the instant controversy are mired in the common-law doctrine, formerly accepted in Michigan, that marriage resulted in unity of person as between husband and wife, the husband alone controlling all of his and his wife’s actions and property. By virtue of her married state, the wife "lost entirely all the legal incidents attaching to a person acting in her own right”, including the right to separate ownership of property and the power to make personally binding contracts, Burdeno v Amperse, 14 Mich 90, 92 (1866); Tong v Marvin, 15 Mich 60, 66 (1866); Note, The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit, 74 Mich L Rev 76, 78-79 (1975).

To remedy some of the injustices resulting from women’s disabilities of coverture, the Michigan Legislature enacted a married women’s property act. The key provision, unchanged since 1855, is today codified as MCL 557.1:

"That the real and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations and engagements of her husband and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her in the same manner and with the like effect as if she were unmarried.”

This provision granted married women significant control over their separate property and the concomitant power to contract with regard to that property. Michigan courts, however, early established that the forerunner of MCL 557.1 had not conferred upon married women a "general capacity to contract”. West v Laraway, 28 Mich 464, 465 (1874). The purpose of the statute was primarily to protect the wife in the enjoyment and disposal of her property for her benefit and that of her family free from her husband’s potentially pernicious control. De Vries v Conklin, 22 Mich 255 (1871), Artman v Ferguson, 73 Mich 146; 40 NW 907 (1888). The remedial legislative design was to remove a married woman’s contractual disabilities only insofar as they might operate unjustly and oppressively to subject her separate property to dissipation by her huband or another, De Vries, supra.

In keeping with this protective, limited interpretation of statutory intent, Michigan courts have consistently held that a married woman may not contract to become personally liable on a debt except where the contract is related to her separate ownership of property nor can she act as surety for the debt of another. For example, in De Vries, supra, a creditor brought an action in assumpsit against a husband and wife on a promissory note jointly executed in consideration for the creditor’s discontinuance of a suit against the husband alone. The Court held:

"[The] statute neither in terms authorizes a married woman to make herself liable personally for the debt of another, nor Where no consideration moves to her cap it be presumptively for her benefit. It was no part of the design of the statute to relieve her of common law disabilities for any such purpose.” 22 Mich at 259.

Then, in West, supra, plaintiff sued husband and wife jointly upon their joint promissory note, which had been given to obtain an extension of time on the husband’s debt. The Court upheld the wife’s defense that her separate estate was not bound by the note, emphasizing that a married woman only had limited statutory capacity to contract.

"* * * She can only make such contracts as relate to her own property, while in regard to that she has very full powers. She may purchase property and bind herself for the purchase money * * * But she cannot become personally liable except on account of her own matters; and cannot enter into an undertaking jointly with her husband as his surety. De Vries v Conklin, 22 Mich 255. And she can never be held without affirmative proof that the contract is her own and within her powers * * *.” 28 Mich at 465.

The principles enunciated in West and De Vries, that a married woman cannot be held personally liable on any contract unless some consideration flows directly to her separate estate and that she cannot act as surety for another, have proven remarkably hardy through the years. See, e.g., Kitchell v Mudgett, 37 Mich 81 (1877), Johnson v Sutherland, 39 Mich 579 (1878), Koengeter v Holzbaugh, 332 Mich 280, 283-285; 50 NW2d 778 (1952), National Bank of Rochester v Meadowbrook Heights, Inc, 80 Mich App 777, 782; 265 NW2d 43 (1978). Also compare Kirby v Orloff, 226 Mich 413; 197 NW 371 (1924), with Monroe State Savings Bank v Orloff, 232 Mich 486; 205 NW 596 (1925).

Nevertheless, beginning with Watson v Thurber, 11 Mich 457, 469 (1863), Michigan courts have also recognized the principle that "[there] is no legal objection to the making by a wife of a mortgage to secure her husband’s debts”. Watson accordingly allowed foreclosure on a wife’s mortgage of her sole property given to secure her husband’s preexisting debt. See also Marx v Bellel, 114 Mich 631, 633; 72 NW 620 (1897), where the Court seems to rule that a wife may create a lien upon her separate estate for her husband’s debt. Numerous other decisions have similarly held that a married woman may mortgage or convey her separate property as security for her husband’s or another’s debt. See, e.g., Damon v Deeves, 57 Mich 247; 23 NW 798 (1885), Lewis v Doyle, 182 Mich 141; 148 NW 407 (1914), Peoples Wayne County Bank v Wesolowska, 256 Mich 45; 239 NW 367 (1931), Shepard v Bestar, 271 Mich 219; 259 NW 895 (1935), Collateral Liquidation, Inc v Manning, 287 Mich 568; 283 NW 691 (1939).

Moreover, even the Courts in De Vries, supra, and West, supra, distinguished a married woman’s conveyance by mortgage to secure another’s debt, which they found permissible under the married women’s property act on the authority of Watson, from a contract making her personally liable without reference to her separate estate, which they ruled the act did not authorize. Their analysis logically implies a crucial distinction between a married woman’s assignment of a specific interest in an identifiable part of her separate property, which is enforceable whether or not her property derives any direct benefit, and her contract for personal liability, which is only valid if it directly concerns her property.

The narrower question before us is whether a pledge of a wife’s sole property to secure an obligation jointly incurred with her husband falls within the holding of De Vries and West or within that of Watson.

We first note some language in West which, while subject to attack as dictum, nevertheless supports the contention that a married woman’s pledge of her separate property is enforceable:

"Those who deal with her [a married woman] on her personal responsibility must be prepared to show that she has acted within her legal powers. Those who desire to obtain security on her property must obtain it as they would if she were unmarried,—that is, by some instrument describing the property and defining their rights in it, or by some pledge or transfer which is equivalent.” 28 Mich at 470-471. (Emphasis supplied.)

However, in Russel v Peoples Savings Bank, 39 Mich 671 (1878), the Court refused to enforce a transaction which otherwise appears to be a married woman’s assignment or pledge of a specific portion of her separate property. The woman, who was a stockholder in a corporation, endorsed over and delivered to the creditor bank her solely held note from another corporation as collateral for an overdue note of the corporation in which she owned stock. The Court labeled the transaction a contract of suretyship which was unenforceable because the married woman’s separate estate had not benefited by the contract. See also Mutual Benefit Life Ins Co v Wayne County Savings Bank, 68 Mich 116; 35 NW 853 (1888), where the Court held void a married woman’s assignment to a bank of her beneficial interest in two life insurance policies as security for a debt jointly incurred with her husband. The opinion emphasized both that her separate estate had received no consideration and that she was basically ignorant of the import of her signature when her husband obtained it.

In contrast is the holding of Just v State Savings Bank of Ionia, 132 Mich 600; 94 NW 200 (1903), a case with facts very similar to those of the instant situation. Mr. Just validly transferred to his wife several certificates of stock of the Ionia County Savings Bank. Mr. Just subsequently borrowed $2,000 from defendant bank, gave his sole note for the debt and delivered two of his wife’s stock certificates as collateral for the note along with his wife’s written consent to the pledge. The Court held:

"While a married woman may not become a surety for her husband, and thereby incur a personal obligation, she may pledge her property to secure his debt. This she seems to have been willing to do, and is now estopped from disputing the validity of the pledge.” 132 Mich at 605. See also Probst v Massachusetts Bonding & Ins Co, 230 Mich 543; 202 NW 974 (1925).

Apart from Mrs. Wendland’s further allegations of fraud, the only difference between the instant case and Just, supra, is that Mrs. Wendland pledged her stock to secure a joint debt rather than her husband’s sole debt. This difference is by itself statutorily insignificant. According to the applicable precedent, the important factor is the relationship between the liability incurred by the married woman on the debt and her separate estate, not merely the nature of the underlying debt.

We resolve any ambivalence in the case law in favor of following the Just ruling. Very early in the history of statutory interpretation of MCL 557.1, Michigan courts drew a logical distinction for purposes of validity between married women’s contracts for personal liability on a debt in the nature of suretyship and their contracts assigning a particular interest in their separate property as security for a debt. A pledge of stocks falls in the latter category and is thus enforceable.

Regarding the secondary issue of fraud, plaintiff alleged below that her property was delivered to defendant without her knowledge or consent, and that if she signed any forms assigning her stock to defendant she only did so in the belief that her signatures were necessary to allow her husband’s business to expand. The trial court found no genuine issues of material fact. It also concluded as a matter of law that neither defendant nor plaintiffs husband had defrauded plaintiff and that, absent any fraud, she was estopped from denying the validity of her stock assignments where she had signed the requisite documents at her husband’s request.

We first note that, because of the factual record developed below, summary judgment, if appropriate at all, should have been awarded pursuant to GCR 1963, 117.2(3) and not under GCR 1963, 117.2(1). As for the undisputed factual basis of plaintiffs claim of fraud, she testified at her deposition that she recognized her signature on the stock assignments but said that she did not recall signing them because she habitually signed all documents presented to her by her husband without reading the contents or inquiring into them. She also stated that she had not been consulted when her stocks were pledged as security nor was she aware that the certificates had been delivered to defendant. Plaintiff did not allege any fraudulent intent on the part of her husband or defendant.

Plaintiffs allegations are insufficient to establish a traditional claim of fraud. See 12 Michigan Law & Practice, Fraud, §§ 1-11, pp 390-411. Plaintiff, however, relies on Peters v Burt D Howe Co, 237 Mich 261; 211 NW 639 (1927). In Peters, the Court apparently found that a wife had been induced to assign her sole interest in a land contract to her husband’s creditor on the strength of her husband’s representation that he would thereby obtain additional funds for his business. The Court held that where the purpose of the wife’s assignment was actually to secure her husband’s preexisting debt, she had been the victim of fraud.

There is a parallel between Peters and the present case in that, along with her stock assignments, plaintiff signed a Federal Reserve document indicating that the stock was being assigned to obtain a working capital loan rather than to secure the Wendland’s preexisting joint debt. But the plaintiff stated that she did not read what she signed nor did she ask about the significance of any document. Her signature of the stock assignments was hardly induced by any misrepresentation in the Federal Reserve form. In short, plaintiff has not established that she received any inducement or acted under any fraudulently promoted misapprehension of the circumstances surrounding her signature. The fact that plaintiff paid no attention whatsoever is not sufficient to raise a claim of fraud.

We recognize the harsh effect of our decision on plaintiff in this case. In many instances, the contractual restrictions sanctioned by the married women’s property act may today operate as an anachronistic reminder to capable women of their lingering common-law legal inferiority. Plaintiff, however, professed no interest in or aptitude for financial matters and now invokes the underlying protective intent of the act. Despite our sympathy for plaintiff’s situation, we do not believe it commensurate with either the weight of principled authority or with present legislative policy regarding the equal legal status of women to relieve plaintiff of the consequences of her act by finding her contractually disabled.

Affirmed, costs to defendant.

       According to the deposition testimony of defendant’s credit analyst, defendant’s records revealed that the Wendlands received no further loans at the time of the stock certificate deliveries. Defendant did, however, subsequently loan the Wendlands more money.

       See 41 Am Jur 2d, Husband and Wife, §§ 213-226, pp 183-193, and 41 CJS, Husband and Wife, §§ 343-360, pp 828-843 for general background information on this problem.

       In Isabella Bank & Trust v Pappas, 79 Mich App 274, 279; 261 NW2d 558 (1977), the Court noted that "it should be readily apparent to one and all that the married women’s property act serves as a shield to familial security and protection of the innocent * * See City Finance Co v Kloostra, 47 Mich App 276, 282-289; 209 NW2d 498 (1973), for an analysis of the history and intent of the married women’s property act together with a review of the reasons motivating the drafters of the 1963 Michigan Constitution to include a provision purportedly abolishing all disabilities of coverture in this state. Const 1963, art 10, § 1. This Court concluded in City Finance Co, supra, that the constitutional provision was not intended to supersede the married women’s property act, and that any contractual disabilities of coverture not abrogated by that act still remain. See also generally, Note, The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit, 74 Mich L Rev 76-96 (1975).

         The Russel Court reasoned that, even though Mrs, Russel was a stockholder of the corporation which she sought to aid, a contract for the benefit of the corporation was clearly distinguishable from a contract for the benefit of her own property. While her attempt to contractually ensure the corporate well-being might in turn benefit her personal estate, the result was too indirect and incidental to render her contract enforceable. See also Koengeter v Holzbaugh, 332 Mich 280; 50 NW2d 778 (1952), where the Court used the same reasoning in holding that a wife’s separate estate was not sufficiently benefited to hold her severally liable on a promissory note jointly executed with her husband, although the proceeds of the loan obtained in exchange for the note provided working capital for a corporation of which the wife was the sole stockholder.

       In particular, the Michgian Legislature recently ratified the Equal Rights Amendment and made it illegal to discriminate on the basis of, inter alia, sex and marital status in extending credit or granting a loan. See MCL 750.147a; MSA 28.344(1).
      We hazard no opinion regarding the result in a case where remaining common-law contractual disabilities would directly conflict with recent statutory guarantees of their equal legal rights. But see Note, Married Women’s Access to Credit, supra, fn 2 at 101-105.


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

text:
    MILLER v AUTO-OWNERS INSURANCE COMPANY
    Docket No. 78-3028.
    Submitted April 3, 1979, at Lansing.
    Decided September 5, 1979.
    Leave to appeal applied for.
    Plaintiff, Richard J. Miller, was injured when his automobile, on which he was installing shock absorbers, fell on him crushing his chest. The plaintiff brought an action against Auto-Owners Insurance Company seeking recovery of personal protection insurance benefits pursuant to a no-fault insurance contract between the parties. The Ingham Circuit Court, Jack W. Warren, J., denied the defendant’s motion for summary judgment. In so ruling, the trial court determined that the plaintiff was engaged in the maintenance of his motor vehicle as a motor vehicle pursuant to the no-fault automobile insurance act and that the "parked vehicle” exclusion of the act was inapplicable to the case at bar because the plaintiff had not parked his vehicle within the meaning of the no-fault act. The defendant appeals. Held:

    The trial court adopted a definition of the term "parking” that was too restrictive. The trial court erred in finding that the plaintiff’s vehicle was not parked and, consequently, the trial court erred in granting the plaintiff a summary judgment on the issue of liability. Since the plaintiff’s vehicle was parked, he is entitled to benefits only if he fits one of the exceptions to the parked vehicle exclusion.
    Reversed and remanded.
    1. Insurance — Automobiles — No-Fault Insurance — Motor Vehicle — Parked Vehicle — Words and Phrases.
    A vehicle in a parking lot, with the engine stopped and the rear wheels on blocks is a parked vehicle; whether or not the vehicle is occupied or attended is immaterial to a determination of whether or not the vehicle is parked.
    References for Points in Headnotes

       7 Am Jur 2d, Automobiles and Highway Traffic § 231.

       Am Jur 2d New Topic Service. No-Fault Insurance § 14.
    What constitutes "motor vehicle” covered under no-fault insurance.
    60 ALR3d 651.

      2. Insurance — Automobiles — No-Fault Insurance — Personal Injury Protection — Parked Vehicles — Exclusions — Statutes.
    A plaintiff who was injured when his parked car fell off of some blocks and a jack, crushing the plaintiffs chest, is entitled to personal protection insurance benefits under the no-fault act only if he comes within the terms of the exceptions to the parked vehicle exclusion of the act (MCL 500.3106; MSA 24.13106).

      Sinas, Dramis, Brake, Turner, Boughton, McIntyre & Reisig, P.C. (by John F. Rohe), for plaintiff.

      Fraser, Trebilcock, Davis & Foster (by Eugene F. Townsend, Jr., and C. Mark Hoover), for defendant.
    Before: R. M. Maher, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   R. M. Maher, P. J.

Defendant appeals as of right a May 8, 1978, circuit court order denying its motion for summary judgment and granting plaintiff’s motion for partial summary judgment on the issue of liability.

On June 10, 1977, plaintiff, who had purchased two shock absorbers which he intended to install himself, drove his car to the parking lot of his apartment building and parked his car. He placed blocks of wood in front of each front wheel and elevated the rear wheels by means of an hydraulic jack placed under the differential gear. Plaintiff then placed a large block of wood under each rear wheel and lowered the jack until the tires rested upon the blocks. This done, plaintiff crawled under the car to begin installing the shock absorbers.

It soon became clear to plaintiff that in order to install the shock absorbers he would have to remove the tire. He therefore raised the car again and removed the block under the left tire, again lowering the jack until the car rested partly on the jack and partly on the block under the right rear tire. After removing the left tire assembly, plaintiff crawled back under the car and continued installation of the shock absorbers. While he was so engaged, the automobile fell, crushing plaintiff’s chest.

Plaintiff seeks recovery of personal protection insurance benefits pursuant to a "no-fault” insurance contract between the parties in this action. On April 28, 1978, the trial court granted plaintiff’s motion for partial summary judgment and denied defendant’s motion.

In granting plaintiff’s motion, the trial court performed a two-step analysis. First, it determined that plaintiff was engaged in the maintenance of his motor vehicle as a motor vehicle pursuant to MCL 500.3105; MSA 24.13105. Secondly, the court determined that the "parked vehicle” exclusion of MCL 500.3106; MSA 24.13106 (hereinafter § 3106) was inapplicable to the present case. The trial court defined "parking” as: "(1) a voluntary and temporary act; (2) the act of leaving the vehicle; and (3) the vehicle must not be in use.” Reasoning that, because "Plaintiff did not leave his vehicle according to the common usage of the term”, he had not parked the vehicle within the meaning of the statute, the court held that plaintiff could recover personal protection insurance benefits from his insurer.

We believe that the trial court adopted too restrictive a definition of the term "parking”. MCL 500.3106; MSA 24.13106 provides:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) The injury was a direct result of physical contact with equipment permanently Mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.” (Emphasis added.)

If a driver or owner of a vehicle Must leave the vehicle and forego using it in order for the vehicle to be parked within the meaning of § 3106, the exceptions listed in subsections (b) and (c) would be meaningless. It is difficult, for example, to conceive of a situation in which a claimant has left the vehicle yet is injured while occupying it.

In another context, this Court has said: "Parking is merely one form of stopping.” Bensinger v Happyland Shows, Inc, 44 Mich App 696, 702; 205 NW2d 919 (1973). Although every stopped vehicle clearly is not parked (e.g, vehicles stopped by a traffic jam or by a red light), we are of the opinion that a vehicle in a parking lot, with the engine stopped and the rear wheels on blocks is a parked vehicle. Whether or not the vehicle is occupied or attended is immaterial to a determination whether or not it is parked.

Having concluded that the trial coürt erred in finding that plaintiffs vehicle was not parked, we are constrained to find that the trial court erred in granting summary judgment on the issue of liability. Because plaintiffs vehicle was parked, he is entitled to benefits only if he comes within the terms of § 3106 (a), (b) or (c). We therefore reverse and remand for determination of the question whether plaintiffs injury falls within one of the enumerated exceptions to the parked vehicle exclusion.

Reversed and remanded for further proceedings.

       See also MCL 257.38; MSA 9.1838:
      " 'Parking’ means standing a vehicle, whether occupied or not, upon a highway, when not loading or unloading except when making necessary repairs.”


author: D. E. Holbrook, J.

text:
    RAWLINS v AETNA CASUALTY & SURETY COMPANY
    Docket No. 78-3226.
    Submitted June 11, 1979, at Lansing.
    Decided September 5, 1979.
    Eileen Rawlins’ husband died as a result of an automobile accident which occurred in the State of Texas on April 27, 1974. Only the decedent’s automobile was involved in the accident. At the time of the accident Mrs. Rawlins and her two minor children were domiciled and residing in the State of Michigan. On September 16, 1976, Eileen Rawlins, individually and as the next friend of Cynthia Blair, and Sheryl Blair commenced an action against Aetna Casualty & Surety Company seeking survivor’s loss benefits, under a no-fault automobile insurance policy covering an automobile owned and operated by plaintiff, Eileen Rawlins. The first written notice of a claim for benefits under the no-fault policy was given to the defendant on or about July 19, 1976. Sheryl Blair and Cynthia Blair were born on March 10, 1958, and September 12, 1960, respectively.
    The defendant’s motion for summary judgment, based on the one-year limitation period in the no-fault act, was granted by the Ingham Circuit Court, James T. Kallman, J. The plaintiff appeals, alleging, among other things, that the saving provisions of the Revised Judicature Act apply to causes of actions under the no-fault act and that, therefore, the one-year limitation period of the no-fault act did not bar the action of the minor children. Held:

    1. The general saving provisions of the Revised Judicature Act apply to causes of action under the no-fault act. The minor children had one year after reaching majority to bring an action to recover survivor’s loss benefits. Thus, since one was still a minor when the action was commenced and the other had reached majority less than one year prior to commencement of the action, the lower court improperly granted accelerated judgment for the defendant with respect to Cynthia and Sheryl Blair.

      References for Points in Headnotes

       44 Am Jur 2d, Insurance § 1455.
    51 Am Jur 2d, Limitation of Actions § 17.

       New Topic Service Am Jur 2d, No-Fault Insurance § 9.

       51 Am Jur 2d, Limitation of Actions § 59.

      2. The cause of action of Eileen Rawlins is barred by the one-year limitation period even though the losses sought to be recovered were not all incurred within one year of the accident.
    3. The limitation provision of the no-fault act does not constitute a violation of equal protection of the law.
    Reversed as to the plaintiffs Cynthia and Sheryl Blair and remanded for trial. Affirmed as to plaintiff Eileen Rawlins.
    1. Insurance — Notice — Limitation of Actions — Statutes.
    Notice provisions in insurance policies have different objectives than statutes of limitation; notice provisions are designed, inter alia, to provide time to investigate and to appropriate funds for settlement purposes; statutes of limitation are intended to prevent stale claims and to put an end to fear of litigation.
    2. Insurance — Automobiles — No-Fault Insurance — Personal Protection Benefits — One-Year Period — Limitation of Actions — Statutes.
    A portion of the no-fault automobile insurance act which provides that certain actions for recovery of personal protection benefits for accidental bodily injury or death may not be commenced later than one year after the date of the accident causing the injury or death, unless written notice of the claim has been given to the insurer within one year after the accident, or unless the insurer has previously made a payment of benefits for the injury or death, is a one-year statute of limitations with a provision enabling claimants to extend the period for up to one additional year by giving notice; therefore, where a plaintiff neither filed a complaint, nor gave notice, nor received payments within the one-year period, the plaintiff was barred from later presenting her claim and a defendant’s motion for accelerated judgment should have been granted (MCL 500.3145[1]; MSA 24.13145[1]).
    3. Limitation of Actions — Saving Provisions — Minors — Revised Judicature Act — Insurance — No-Fault — Statutes.
    The general saving provisions of the Revised Judicature Act apply to causes of action created by Michigan statutes; thus, the minority saving provision in the Revised Judicature Act extends the time for minors to bring suit under the no-fault automobile insurance act, which contains its own statute of limitations (MCL 500.3145, 600.5851; MSA 24.13145, 27A.5851).

      Church, Wyhle, Kritselis, Anderson & Robinson, P.C. (by Thomas H. Hay), for plaintiffs.

      Foster, Swift, Collins & Coey, P.C. (by Jonathan E. Raven), for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, J.

The instant action was brought by a surviving widow and her two children seeking survivor’s loss benefits from their no-fault automobile insurer. Plaintiff Eileen Rawlins’ husband died as a result of an automobile accident which occurred in the State of Texas on April 27, 1974. The accident was a one-car collision involving only the decedent’s automobile. At the time of the accident plaintiff wife and her two minor children were domiciled and residing in the State of Michigan. Their complaint states that they were dependent upon the decedent for their support. Defendant was the insurer of a second automobile, owned and operated by the plaintiff wife.

Plaintiffs claim they were unaware of their rights under plaintiff Eileen Rawlins’ policy with defendant and, therefore, did not make a claim for benefits thereunder until advised to do so by their attorney. The first written notice of claim for benefits under the policy of insurance was made to the defendant on or about July 19, 1976. The present action was filed on September 16, 1976.

Both daughters, Cynthia and Sheryl, were under the age of 18 years at the time of the accident and for more than the first year following the accident. Cynthia was born September 12, 1960, and Sheryl was born March 10, 1958, according to the complaint.

Defendant filed a motion for accelerated judgment on the ground that the action was barred by the statutory limitation period contained in the no-fault statute, MCL 500.3145; MSA 24.13145. A hearing was held before the trial court on July 21, 1978. Plaintiffs, in their answer to the motion, argued that the limitation period was one of notice and not of limitation, and that it would be unfair and inequitable to defeat the claim of the minor children.

The trial court issued an opinion on July 27, 1978, finding that the actions were barred by the statutory limitations period and therefore granted the defendant’s motion for accelerated judgment and dismissed the case.

Plaintiffs have filed an appeal of right from that order.

Plaintiffs raise three issues on appeal.

I. Does the one-year limitation period provided for in MCL 500.3145 bar a minor’s cause of action for recovery of survivors’ loss beneñts under the no fault act?

It is plaintiffs’ position on this issue that the minority provision of the Revised Judicature Act, MCL 600.5851; MSA 27A.5851, extends the time required to give notice or file a claim under the no-fault act’s statutory limitation of one year, MCL 500.3145; MSA 24.13145, by giving minors a year of grace after the termination of their disability before requiring them either to give notice or file a claim.

It becomes necessary first to interpret the no-fault statute, specifically MCL 500.3145 which reads as follows:

"Sec. 3145. (1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than one year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.”

In the case of Davis v Farmers Ins Group, 86 Mich App 45, 47-49; 272 NW2d 334 (1978), the plaintiff brought an action to recover benefits under a policy of insurance issued to him by defendant Farmers Insurance Group, for injuries sustained in a motorcycle accident. Defendant therein brought a motion for accelerated judgment under GCR 1963, 116.1(5), on the grounds that the claim was barred by the applicable statute of limitations. The trial court denied the motion and defendant therein appealed.

It was stated therein that the decision of the case depended upon an interpretation of MCL 500.3145(1); MSA 24.13145(1) and quoted the statute and then stated in part as follows:

"Plaintiff contends that the quoted section is not a limitation of actions provision, but rather a notice provision and therefore constitutes a bar to this action only if defendant establishes that it was prejudiced by the lack of notice, citing Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973).
"We disagree. Notice provisions have different objectives than statutes of limitation. Notice provisions are designed, inter alia, to provide time to investigate and to appropriate funds for settlement purposes. Statutes of limitation are intended to prevent stale claims and to put an end to fear of litigation. Dillon v Tamminga #1, 64 Mich App 301; 236 NW2d 716 (1975).
"In Dolson v Secretary of State, 83 Mich App 596; 269 NW2d 239 (1978), we dealt with the time limitation for recovery of personal protection insurance benefits claimed through an assigned claims plan, embodied in MCL 500.3174; MSA 24.13174. The time limitation contained in that section is determined by applying MCL 500.3145(1); MSA 24.13145(1), which provision is involved in the instant case. We concluded in Dolson that the specific objective of the time limitation is to insure that claims be settled while the evidence remains fresh. This objective is characteristic of a statute of limitation.
"In the case at bar, the language of the statute was intended as a limitation on actions for personal benefits arising under the no-fault act, with a mechanism for extending the one-year period upon filing of notice within the year. There is no requirement that plaintiff file notice in order to be able to take advantage of the full statutory period. That he is entitled to in any case. Notice simply gives him the benefit of an additional year’s grace.
"Thus, we conclude that MCL 500.3145(1); MSA 24.13145(1) is a one-year statute of limitations, with a provision enabling claimants to extend the period for up to one additional year by giving notice. Plaintiff having neither filed a complaint nor given notice within the one-year period, is barred from now presenting his claim. The motion for accelerated judgment should have been granted.”

We choose to follow Davis until our Supreme Court gives us a different interpretation. We are therefore constrained to rule as to the cause of action of Eileen Rawlins, that the statute of limitations in the no-fault statute is effective as applied to her.

We now proceed to determine if the statute of limitations in the act is subject to the minority provision of the Revised Judicature Act, MCL 600.5851; MSA 27A.5851, which reads as follows:

"Sec. 5851. (1) If the person first entitled to make an entry or bring an action is under 18 years of age, insane or imprisoned at the time his claim accrues, he or those claiming under him shall have 1 year after his disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.”

The defendant argues that the limitation period set forth in the no-fault act is not affected by the minority savings provision of the Revised Judicature Act.

Plaintiff children argue that under the general statute of limitations provisions in the Revised Judicature Act, infancy is treated as a disability and minors are given a year of grace after termination of this disability in which to commence an action and that, applying this savings provision to the instant situation, the plaintiff-minors herein commenced an action for recovery of survivors’ loss benefits within one year after reaching their majority. They further argue that this general savings provision then should fully apply to preserve the minors’ cause of action under the no-fault statute.

The no-fault act contains its own statute of limitations. We now look for a case that is similar, i.e., involving a statute that contains its own statute of limitations and the issue is therein considered as to whether the general saving provisions of the Revised Judicature Act apply thereto.

The case of Lambert v Calhoun, 394 Mich 179; 229 NW2d 332 (1975), considers and rules on this issue. Therein Beverly Lambert through a representative, commenced an action for damages for personal injuries three years and two months from the date of the automobile accident. Lambert, who was a minor at the time the action accrued, relied on the minority saving provision in the Revised Judicature Act which permits commencement of an action within one year after removal of the disability although the period of limitations has run. Lambert’s action was brought under the Motor Vehicle Accident Claims Act, which contains its own statute of limitations, MCL 257.1128; MSA 9.2828. The Secretary of State intervened as a party defendant. The trial court granted accelerated judgment for the Secretary of State.

Mr. Justice Levin, speaking for the Court, stated:

"Whether domestic statutes of limitations should govern enforcement of a right created by a foreign statute is manifestly a different question than whether general saving provisions of the forum extend the time for commencing an action to enforce a statutorily created right, especially a right created by the legislature of the forum.
"As noted by one commentator: 'Although the reasons for postponing the [limitation] period may be equally strong in this instance [of built-in limitations], the rule is nevertheless followed without attempt at reasoned justification’. In fact, if anything, 'at least when a state legislature creates a new right including its own limitations, there appears no general intent to reject the usual exceptions. Where the limitation in question does not indicate that the legislative intent would be frustrated by the application of the particular statutory exception concerned, postponement or suspension of the period would probably further the general purpose of the legislature’.
"While conditional right analysis requires that statutory actions be commenced within any built-in time limitations unenlarged by general saving provisions, the question is one of legislative policy and intent.
"The intentions of at least two different legislatures are at issue. Conditional right analysis ascribed an absolutist intent to the foreign legislature which enacted the right sought to be enforced domestically. There is no need to ascribe a like intent to the domestic legislature regarding the application of domestic saving provisions to domestic enforcement of domestic statutory actions.
"There is scant reason to ascribe to a legislature an intent to distinguish between common-law and statutory causes of action in the application of saving provisions. This is especially without warrant in the application of domestic saving provisions to domestic statutory causes of action.
"The need and desirability for saving in one case are the same as in the other. Infants or insane persons are under the same disability whether their actions be common-law or statutory; the defendant in one case is generally in no greater need than the defendant in the other of protection from delay in commencement of the action. We are unable to distinguish the two cases or to ascribe to the Legislature such an intention.
"There is no basis for indulging the assumption that the Legislature, aware of our former decisions, adopted the conditional right analysis. Bigelow v Otis [267 Mich 409; 255 NW 270 (1934)], the first case to apply this analysis to saving provisions, was decided in 1916, after the enactment of the Judicature Act of 1915. The language of the saving provisions was, as previously indicated, changed in 1961 to cover 'any action’ when the Revised Judicature Act was adopted. Holland [v Eaton, 373 Mich 34; 127 NW2d 892 (1964)], although decided in 1964, arose under the 1915 Act. This is the first consideration by this Court of this question in terms of the saving provisions of the Revised Judicature Act.
"We hold that the general saving provisions of the Revised Judicature Act apply to causes of action created by Michigan statutes.
"Reversed and remanded for trial.” 394 Mich 190-192.

The Lambert case and the instant case appear to us to be practically the same. We hold that the general saving provisions of the Revised Judicature Act apply to causes of action created under the no-fault statute, a Michigan statute.

We also note that our Court came to the same conclusion in considering the effect of the saving provisions of the Revised Judicature Act in applying it to the statute of limitations contained in the Probate Code. We refer to the case, Rosebrock v Vondette, 85 Mich App 416; 271 NW2d 257 (1978). It is also therein stated on page 423 as follows:

"A summary as to the practical effect of the above decision can be found in 22 Wayne L Rev:
"'The result of Lambert was to overrule Holland and establish the rule that henceforth the minority savings provisions of the Revised Judicature Act applies [sic] to all statutorily created causes of action, as well as common law causes of action, even when the statute creating the right contains its own period of limitations.’ Atkinson, Torts, 22 Wayne L Rev 629, 648 (1976).”

II. Is plaintiff Eileen Rawlins’ cause barred by §3145, when the losses sought to be recovered were not all incurred within one year of the injury?

Plaintiff did not raise this issue below. However, under the decision of our Court in Dolson v Secretary of State, 83 Mich App 596; 269 NW2d 239 (1978), plaintiffs position is not tenable, unless our Supreme Court speaks to the issue differently in the future.

III. Does the limitation provision of § 3145 as interpreted by the trial court constitute a violation of equal protection of the law?

This claim was likewise denied in the case of Dolson v Secretary of State, supra.

Reversed as to plaintiffs Cynthia and Sheryl Blair and remanded for trial. Affirmed as to plaintiff Eileen Rawlins. No costs, construction of statutes being involved.