author: D. S. DeWitt, J. M. J. Kelly, J:

text:
    IRVAN v BORMAN’S, INCORPORATED
    Docket No. 43233.
    Submitted October 15, 1979, at Detroit.
    Decided March 17, 1980.
    Leave to appeal applied for.
    David G. Irvan was a part-time employee of Farmer Jacks, a division of Borman’s, Incorporated, earning an average weekly wage of $28, when he suffered a work-related injury which resulted in a temporary total disability from unskilled labor. Following the injury, Farmer Jacks continued to pay Irvan $28 a week. In November, 1976, Irvan filed a petition for a hearing with the Bureau of Workmen’s Compensation. After a hearing it was determined that the correct rate for weekly compensation for Irvan was the statutory minimum of $78. Borman’s appealed to the Worker’s Compensation Appeal Board which affirmed the determination of the referee. From that decision Farmer Jacks now appeals to the Court of Appeals by leave granted. On appeal, Borman’s contends that the minimum provided for in the Worker’s Disability Compensation Act applies only to full-time employees. Held:

      A part-time employee is not entitled to an award of benefits in an amount in excess of the employee’s average weekly wage in light of an express prohibition against such an award in a provision of the Worker’s Disability Compensation Act. The minimum-rate language found in other provisions of the act should be read to apply only to full-time employees or fictional 40-hour employees. A part-time employee is subject to an explicit wage formula whereby the average weekly wage is determined by multiplying the employee’s hourly rate by the average number of hours worked in the part-time employment. Compensation payable to such an employee shall not exceed the average weekly earnings at the time of the injury.
    Reversed and remanded.
    M. J. Kelly, J., dissented. He would hold that, since Irvan’s injury resulted in a temporary total disability from unskilled labor, he was entitled to the statutory minimum. He would affirm.

      References for Points in Headnotes
    [1, 2, 6, 7] 81 Am Jur 2d, Workmen’s Compensation § 347.
    [2, 6] 82 Am Jur 2d, Workmen’s Compensation §§ 367-369.
    [3] 73 Am Jur 2d, Statutes §§ 214-216.
    [4] 73 Am Jur 2d, Statutes § 194 et seq.

    [5] 73 Am Jur 2d, Statutes §§ 191, 254.

      Opinion op the Court
    1. Workers’ Compensation — Benefits — Wages.
    Employers in certain instances are required to bear the burden of an employee’s incapacitating injuries despite the fact that, at times, the workmen’s compensation benefits paid will be in excess of the amount of actual wages that would have been earned by the employee.
    2. Workers’ Compensation — Part-Time Employees — Statutes.
    A part-time employee who has suffered a work-related injury which impairs his earning capacity in the part-time employment only is entitled to worker’s disability compensation benefits in an amount determined by multiplying the employee’s hourly rate or earning by the average number of hours worked in the part-time employment; when it is found that the employee has worked an average of 25 hours or more per week in all of his current employment, he shall not be considered a part-time employee (MCL 418.371; MSA 17.237[371]).
    3. Statutes — Statutory Construction — General Provisions — Specific Provisions.
    Additional words of qualification needed to harmonize a general and a specific provision in the same statute should be added to the general provision rather than to the specific provision.
    4. Statutes — Legislative Intent — Literal Construction.
    An exception of qualification is presumed to have been intended by the Legislature where an absurd result is reached by a literal construction of a statute.
    5. Statutes — Statutory Construction.
    The various provisions of a single act should be read so that all provisions may, if possible, have effect without repugnancy or inconsistency, so as to render the statute a consistent and harmonious whole.
    6. Workers’ Compensation — Part-Time Employees — Average Weekly Wage — Statutes.
    A part-time employee who has suffered a work-related injury is not entitled to an award of worker’s disability compensation benefits in an amount in excess of the employee’s average weekly wage (MCL 418.371; MSA 17.237[371]).

      Dissent by M. J. Kelly, J.
    7. Worker’s Compensation — Part-Time Employees — Total Loss of Earning Capacity — Statutory Minimum Benefits — Statutes.

      A part-time employee who has suffered a work-related injury, which has resulted in a total loss of earning capacity, is entitled to receive the statutory minimum worker’s disability compensation beneñts; the emphasis should be on earning capacity, not on hours worked or wages earned, which may allow the injured employee to receive more in worker’s compensation beneñts than he received in wages or salary for his part-time employment (MCL 418.351, 418.355; MSA 17.237[351], 17.237[355j).

      Rifkin, Kingsley & Rhodes, P.C., for plaintiff.

      Sommers, Schwartz, Silver & Schwartz, P.C. (by Robert F. Auld), for defendant.
    Before: M. F. Cavanagh, P.J., and M. J. Kelly, and D. S. DeWitt, JJ.

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

   D. S. DeWitt, J.

The plaintiff, David G. Irvan, was a part-time employee of the defendant, Farmer Jacks, a division of Borman’s, Incorporated, earning an average weekly wage of $28 at the time of his injury. Following this injury, the defendant continued to pay the plaintiff $28 a week. In November, 1976, the plaintiff filed a petition for a hearing with the Bureau of Workmen’s Compensation. After a hearing held on March 7, 1978, an administrative law judge found that the correct rate for weekly compensation was the statutory minimum, $78. From this decision, the defendant appealed to the Worker’s Compensation Appeal Board. They, in turn, affirmed the decision of the administrative law judge. From this decision, the defendant applied for and was granted leave to appeal to this Court.

Defendant’s argument is that the minimums provided for in the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., apply only to full-time employees. Applying these minimums to part-time employees, as the plaintiff herein, bestows a windfall upon them in contravention of the aims and purposes of the statute and of public policy itself. Further, § 371 of the statute specifically precludes this practice, limiting the compensation awardable in such situations to a percentage of the employee’s average weekly wage.

A series of cases construing three sections of the Worker’s Disability Compensation Act raises the question of whether payment in excess of an injured employee’s average weekly wage at the time of injury is proper in the part-time employment situation. This discussion is directed toward attempting a reconciliation of those various cases and toward reaching a reasonable interpretation of the act’s seemingly conflicting provisions.

The three statutory provisions at issue provide for the calculation and adjustment of benefits. The first, MCL 418.351; MSA 17.237(351), sets forth a general schedule of awards to be paid throughout the duration of the disability:

"Sec 351. (1) While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee, a weekly compensation of 2/3 of his average weekly wages, but not more than $64.00, if such injured employee has no dependents; $69.00 if 1 dependent; $75.00 if 2 dependents; $81 if 3 dependents; $87.00 if 4 dependents; and $93.00 if 5 or more dependents; except as provided in section 355. Compensation shall be paid for the duration of the disability. Weekly payments shall not be less than $27.00 if there are no dependents; $30.00 if 1 dependent; $33.00 if 2 dependents; $36.00 if 3 dependents; $39.00 if 4 dependents; and $42.00 if 5 or more dependents; except as provided in section 355. Compensation shall be paid for the duration of the disability.” (Emphasis added.)

Section 351 "weekly payment” amounts are adjusted in accordance with MCL 418.355; MSA 17.237(355) as follows:

"Sec 355. (1) The maximum weekly rate in each dependency classification in this act shall be adjusted once each year in accordance with the increase or decrease in the average weekly wage in covered employment, as determined by the employment security commission. The average weekly wage in covered employment determined by the employment security commission for the year ending June 30, 1967, shall be the base on which such adjustments aré made.

"(2) A second adjustment, if any, shall be made on January 1, 1970 and shall reflect the change, if any, between the average weekly wage for June 30, 1969 and the average weekly wage for June 30, 1968 and the adjustment shall be made in like manner on each January 1 thereafter, utilizing the average weekly wage for the preceding June 30.

"(3) Adjustment for the statutory maximum rate shall be made only if there had been an increase or decrease in the average weekly wage of at least $1.50 during the preceding year, applied to the June 30, 1967, base and the director shall announce the adjustment each December 1, to become effective the following January 1. If in any year the change is less than $1.50, the director shall announce no change for the following year but the amount of change in such year shall be carried forward and added to or subtracted from subsequent annual determinations until the total change shall be at least $1.50, in which year an adjustment shall be made. There shall be an adjustment made of $100 in the maximum rates for each $1.50 increase or decrease in the average weekly wage. The maximum weekly rate as so determined for the year in which the date of injury occurred shall remain fixed without further change as to the personal injury occurring within such year.”

In addition, both of the above two sections are subject to the following definitions provided in MCL 418.371; MSA 17.237(371):

"Sec. 371. (1) The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.

"(2) Average weekly wage means the weekly wage earned by the employee at the time of his injury, inclusive of overtime, premium pay, and cost of living adjustment, and exclusive of any fringe or other benefits which continue during disability, but in no case less than 40 times his hourly rate of wage or earning. When it is found that the established normal work week for the employee’s classification of employment in the establishment of the employer where the employee suffered a personal injury is less than 40 hours, then the average weekly wage shall be established by multiplying the employee’s hourly rate or earning by the number of hours customarily worked in the employee’s classification or employment in that place of employment or his actual earned wages, whichever is greater.

"(3) When a hearing referee ñnds that the employee was employed speciñcally and not temporarily on a part-time basis, the average weekly wage shall be determined by multiplying the hourly rate or earning by the average number of hours worked in the part-time employment. When it is found that the employee has worked an average of 25 hours or more per week in all of his current employments, he shall not be considered a part-time employee.

"(4) If the hourly earning of the employee cannot be ascertained, or if no pay has been designated for the work required, the wage, for the purpose of calculating compensation, shall be taken to be the usual wage for similar services where such services are rendered by paid employees.

"(5) Where there are special circumstances under which the weekly wage cannot justly be determined by applying the above provisions, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying, such daily wage by the number of working days customary in the employment, but not less than 5.” (Emphasis added.)

The interplay among these three statutory provisions has been the subject of discussion in several cases, none of which, however, address the specific issue before the Court in the case at bar. In Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), the Court ruled that § 351 minimum compensation rates are adjustable in accordance with the terms of § 355, the result of which was to permit an award in excess of the maximum compensation amount provided in § 351.

Section 351 defines both maximum and minimum compensation rates, both of which are expressly made subject to the provisions of § 355. Section 355 directs that adjustments shall be made to coincide with increases or decreases in the average weekly wage in the covered employment as determined by the Employment Security Commission; however, § 355 makes specific reference to the adjustment of the "maximum weekly rate in each dependency classification” only and makes no reference whatever to the adjustment of § 351’s "minimum” compensation rates.

The Jolliff panel resolved the ostensible conflict by construing the statute in line with its " 'humanitarian objectives and beneficent purposes’ ”. 49 Mich App 4. Accordingly, the Court read into § 355 the authority to adjust both the maximum and minimum compensation rates of § 351. No further explanation or rationale was offered by the Court.

Subsection (1) of § 351 was the provision under consideration in Keyzer v Christian Rest Home, 32 Mich App 286; 188 NW2d 672 (1971). In that case, the Court of Appeals ruled that the minimum weekly payment provided for in § 351(1) applies to both full-time and part-time employees. The Court reached its conclusion on the basis of the "plain language of the statute”, Id., 288; no language in the statute justified the conclusion offered by the defendant that the statutory minimum rate was limited to full-time employees only.

In so ruling, the Court recognized the possibility that its interpretation could result in an award of compensation more than the average weekly wage earned on a part-time basis contrary to the express prohibition in § 371, but dismissed the problem as one "not before us at this time”. Id,. In dicta, the Court nevertheless advised that:

"Had the Legislature desired to effect the interpretation now placed upon the act by defendant, it could easily have done so in simple language. It is not for this Court to add language to a clear and explicit statute.” Id.

The Keyzer Court failed to recognize that the effect of its statements made in dicta would be to render totally inoperative the last clear and explicit sentence in subsection 1 of § 371. Keyzer has not been followed or cited in any subsequent cases.

The Michigan Supreme Court had occasion recently to comment at length regarding various subsections of § 371 in Lahay v Hastings Lodge No 1965 BPOE, 398 Mich 467; 247 NW2d 817 (1976). Although a concurrent employment factual situation was presented in that case, the Court offered considerable insight into the method of calculating part-time employment benefits under § 371.

In Lahay, plaintiff was employed part-time as a bartender and was concurrently employed on a full-time basis as an insurance claims adjustor. Plaintiff suffered an injury to his back while engaged in his part-time employment, for which he received benefits from his part-time employer, the defendant of $32.50 per week. That figure represented the product of 13 hours multiplied by $2.50 per hour, plaintiff’s typical work week. Plaintiff’s injury affected his ability to work in his part-time job only.

Following a hearing, the referee determined that the proper compensation was $70 but on appeal the Worker’s Compensation Appeal Board reversed that determination and limited plaintiff’s award to $32.50 per week. The Court of Appeals in turn reversed the Worker’s Compensation Appeal Board and reinstated the referee’s order 59 Mich App 145; 229 NW2d 348 (1975). And finally, the Michigan Supreme Court reversed the Court of Appeals and remanded for a recomputation of benefits as explained in more detail infra.

In reversing the Court of Appeals, the Supreme Court ruled that, in the concurrent employment situation, it is improper to consider a contemporaneous job in calculating whether an employee is a full-time or a part-time employee, where the employee’s earning capacity in the contemporaneous job is not affected by his or her injury in another job. Thus, where the disabling injury affects only the employee’s part-time job, the formula provides for a benefit that will not exceed the wage earned at the part-time job. The Court further explained that the fictional "40-hour week” formula of § 371(2) applies only to employees who work multiple part-time jobs and sustain an injury at one which diminishes their earning capacity at their other jobs.

While the Court was not faced with the conflict between §§ 351 and 371, the Court did instruct as to the proper calculations to utilize in figuring the benefits of part-time employees and further described the legislative intent prompting the last sentence in § 371 (the limitation clause). Specifically, with respect to the proper method of calculation of benefits, the Court stated the following:

"According to subsection 3 of the statute, an employee who works less than 25 hours per week is considered a part-time employee. His average weekly wage is then established using the formula outlined in the last sentence of subsection 2 of the statute, that is, by multiplying the employee’s hourly rate or earning by the number of hours customarily worked.” 398 Mich 473.

"Thus, in the instant case, Lahay’s actual average weekly wage was $32.50. His actual hours worked at the part-time job (the only one of 'all his current employments’ affected by the disability) were 13. Therefore, his average weekly earnings under the statute are calculated according to the first sentence of subsection 3 to be $2.50 per hour multiplied by an average of 13 hours worked each week, or $32.50. Compensation was paid at a rate of 2/3 the statutory wage by the hearing referee. Thus, plaintiff will receive $21.67 in weekly benefits as long as his wages from the bartending job, or other part-time employment taken in lieu thereof, do not exceed $10.83 per week. If such earnings exceeded that amount, his benefits will be reduced according to the formula in subsection 1.

"If an employee’s disability affected both his full-time job and his part-time job, then the last sentence of subsection 3 would apply and the average weekly wage would be calculated according to subsection 2 on a 40-hour work week basis. If both jobs are affected, Bowles [v James Lumber Co, 345 Mich 292; 75 NW2d 822 (1956)] would not apply and the limitation in subsection 1 would be determined according to his total actual wages.

"Applying Bowles in this manner gives full effect both to the legislative intent that part-time employees be fairly compensated according to their loss of earning capacity, and to the legislative concern that an employee not receive a windfall from his injury.” 398 Mich 480-481.

With regard to the Legislature’s intent in including the limitation clause of subsection 1, the Court states:

"The last sentence of subsection 1 of the statute illustrates the legislature’s intention that an employee should not receive a windfall from his injury. Thus, an injured employee who obtains substitute employment, albeit at reduced earning capacity, shall have his compensation reduced pro tanto.” 398 Mich 479. (Emphasis added.)

Consistent with that intent, the Court construed subsection 2 and 3 of § 371 as it did, so as to avoid the "apparent inequity” that plaintiff "would receive more in compensation benefits than he earned in wages”. Id, 478.

Another case decided the same day as Lahay is Gasparick v H C Price Construction Co, 398 Mich 483; 247 NW2d 824 (1976). In Gasparick, the Court discussed the proper method of computing the "average weekly wage” for an employee engaged in seasonal employment. One aspect of that case is relevant to the case at bar. In Gasparick, the Court noted that the Legislature requires:

"* * * some employers in certain instances to bear the burden of their employees’ incapacitating injuries despite the fact that, at times, the compensation paid will be in excess of the amount of actual wages that would have been earned by an employee.” Id, 490.

The Court proceeded to enumerate only two such "certain instances”:

1) Where an employee’s injury suffered in a part-time job affects his earning capacity in his other current employments (see Lahay, supra, 478-479); and

2) In the seasonal employment situation. Gasparick, supra, 490-491. The justification offered for the latter instance was two-fold:

1) The absence of a specific provision in the statute dealing with the computation of the wage base for an employee engaged in seasonal work, Id., 491; and

2) The elimination of a "residual clause” providing for special calculation where other methods do not reasonably or fairly apply. Id, 488. In addition, the following note of advice and caution was offered:

"It is evident, of course, that this legislative scheme may appear to give rise to many potential inequities. However, on closer analysis, most of the problems can be eliminated, by application of the limiting language of the last sentence of subsection 1 of the statute.” Gasparick v H C Price Construction Co, supra, 491.

On the basis of these statutory provisions and in light of the several cases construing them, a part-time employee, whose disability impairs his earning capacity in the part-time employment only, is entitled to benefits in an amount calculated under § 371(3). Section 351 should logically be construed to apply only to full-time employees or those whose average weekly wage is calculated on the basis of a hypothetical 40-hour work week under § 371(2). This construction of the statute permits both the minimum rates of § 351 and the maximum payment level of § 371 to be given effect under certain circumstances. A construction permitting the award of benefits in excess of the actual wage earned would render the clear and explicit limitation clause of § 371 inoperative and should therefore be avoided.

More specifically, the Supreme Court seems to have encouraged the construction offered above in Lahay. That case is factually distinguishable from the case at bar in that it deals with a concurrent employment situation; however, its policy considerations and reasoning with respect to part-time employment benefits have considerable bearing on the case at bar for several reasons. For example, the Lahay Court stated that the proper method of calculating benefits for a part-time employee is pursuant to § 371(3): by multiplying the hourly rate by the average number of hours worked in the part-time employment. Lahay, supra, 473, 480-481. It made no mention of § 351(1)’s mandatory minimum payment level.

In addition, the Court was careful to construe § 371 so as to effectuate the legislative purpose of insuring that "an employee should not receive a windfall from his injury”. Id, 479. Thus, the Court sought to avoid the "inequitable” result of an employee receiving "more in compensation benefits than he earned in wages”. Id, 478.

The importance which the Court assigned to effectuating the legislative intent of preventing employee windfalls was further illustrated in Gasparick, where the Court recognized that only in certain instances did the Legislature impose the requirement that employers bear the burden of paying in excess of the actual wages that would have been earned by an employee. Gasparick, supra, 490. It is submitted that no justification exists for imposing such a burden on employers of voluntary part-time employees, as in the case at bar. The Court in Gasparick noted that seasonal employees were entitled to exceptional treatment, since the statute was silent with respect to calculating a wage base for employees engaged in seasonal employment. Part-time employees, on the other hand, are the subject of an explicit wage formula in the act under § 371(3). In addition, the Gasparick Court cautioned courts to pay special heed to the limitation clause of § 371 in its statement that: "most of the [potential inequities] can be eliminated by application of the limiting language of the last sentence of subsection 1 of the statute.” Gasparick, supra, 491.

It should be noted that the construction of § 351 along the lines that it is applicable to full-time employees and fictional 40-hour employees only is directly at odds with the holding in Keyzer, supra. It is submitted, however, that Lahay and Gasparick substantially undercut the validity of the Keyzer rule by their construction of legislative intent; unlike the Keyzer panel, the Lahay and Gasparick Courts emphasized the need to effectuate the Legislature’s intent against windfalls. Moreover, Keyzer has not been cited or followed in any case known to this writer. The viability of the Keyzer rule must be seriously questioned in light of Lahay and Gasparick.

Accepted principles of statutory construction support these conclusions. For example, specific provisions govern over more general ones. See 73 Am Jur 2d, Statutes, § 257, p 427 and cases thereunder. Moreover, additional words of qualification needed to harmonize a general (§ 351) and specific provision (§ 371) in the same statute should be added to the general provision (does not apply to part-time employees) rather than to the specific one. Brady v Detroit, 353 Mich 243; 91 NW2d 257 (1958). Also, where an absurd result is reached by a literal construction of a statute, an exception or qualification, is presumed to have been intended. Scholten v Rhoades, 67 Mich App 736, 745; 242 NW2d 509 (1976). Since a construction of § 351 permitting an award in excess of the actual wage earned in part-time employment would nullify the force of § 371’s limitation clause, that construction should be rejected. And finally, the various provisions of a single act should be read so that all may, if possible, have effect without repugnancy or inconsistency, so as to render the statute a consistent and harmonious whole. Remus v Grand Rapids, 274 Mich 577; 265 NW 755 (1936).

In his treatise on worker’s compensation law, Professor Larson devotes considerable attention to the treatment of compensation benefits to injured part-time employees in various jurisdictions. He cites the case of Derion v Gilford Mfg Co, 282 App Div 788; 122 NYS2d 444 (1953), where a part-time machine cleaner, who regularly earned $10.03 per week was awarded $25.72 per week in benefits by the New York Compensation Board. The court reversed the award on the grounds that the formula used by the board in arriving at $25.72 per week was not applicable in the circumstances. Professor Larson commented with respect to the Derion holding as follows:

"It might be thought that this type of result is so logical as to be immune to controversy. However, a contrary holding has been reached in a surprising number of cases.” 2 Larson, The Law of Workmen’s Compensation, § 60.21, p 10-386.

A part-time employee is not entitled to an award of benefits under § 351 and 355 of the Worker’s Disability Compensation Act in an amount in excess of the employee’s average weekly wage in light of the express prohibition against such an award in § 371. The benefits awarded a part-time employee whose injury affects only his part-time employment are to be calculated under § 371(3) and § 351 according to Lahay. While that amount is substantially less than the minimum rate of § 351, the minimum-rate language of § 351 should be read to apply to full-time employees or fictional 40-hour employees only. Otherwise, the § 371 limitation clause would be of no effect under any circumstances.

Reversed and remanded for entry of an order in conformance with this opinion.

M. F. Cavanagh, P.J., concurred.

M. J. Kelly, J:

(dissenting). This controversy was submitted to the Bureau on briefs and exhibits. No testimony was taken. There is no transcript to review. Apparently the parties want an appellate court opinion which silences the sniping at Keyzer v Christian Rest Home, 32 Mich App 286; 188 NW2d 672 (1971), lv den 385 Mich 758 (1971), caused or contributed to by Lahay v Hastings Lodge No 1965 BPOE, 398 Mich 467; 247 NW2d 817 (1976).

Judge DeWitt’s able opinion correctly notes that the Keyzer Court based its holding on the "plain language of the statute”. The Worker’s Disability Compensation Act is about as plain as the Internal Revenue Code. It has been rewritten, codified, consolidated, amended, supplemented, revised, interpreted and abused times without number. We who struggle with its ramifications are left to ponder the legislative intent of an act at once in derogation of the common law and hence to be "strictly construed” and at the same time declarative of an humanitarian policy to be remedial legislation and hence construed with great liberality.

The majority has noted that Keyzer dicta to the effect that a part-time worker could be entitled to weekly benefits in excess of his weekly wage would emasculate the last sentence of § 371(1):

"The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.”

But the majority’s conclusion that "Keyzer has not been followed or cited” is misleading. The probability is that Keyzer has been and is being followed. The referee (administrative law judge) in this case followed it. The Appeal Board followed it and specifically cited it. I would conclude that Keyzer has been followed by the worker’s compensation bench and bar. No CQmpetent claimant’s counsel would overlook its advantages. The majority’s conclusion that it has not been cited only means Shepard’s Michigan Citations records no citations. WCAB reports are not carried by Shepards. No citation means exactly the converse of the majority’s implication.

I respect the observation that the Lahay holding casts some doubt on Keyzer. But I would reconcile the two. Lahay’s disability was for his part-time work only. His capacity to work at his full-time position as an insurance adjuster was not impaired. Had he suffered total disability I think the result would have been different. At least it should have been different. The key is capacity. On this record we have to decide the weekly benefits due the plaintiff-appellee for total disability. His incapacity for any work entitled him to minimum compensation benefits computed under §§ 351 and 355 as interpreted by Keyzer and Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), lv den 391 Mich 780 (1974).

If there is a latent defect in our approach to the question it is the failure to address the issue of applicability of § 371(3). But the referee was not called upon to find "that the employee was employed specifically and not temporarily on a part-time basis”. He obviously computed the average weekly wage by multiplying the hourly rate times 40 in accordance with the first sentence of § 371(2). In Lahay the referee held that the claimant’s jobs totaled more than 25 hours. I am not able to predict how the Supreme Court will treat this issue. I have no hesitancy in suggesting the correct approach. The emphasis should be on earning capacity, not on hours worked or wages earned. Part-time employment may be undertaken for any number of reasons unrelated to capacity.

I would hold that where an injured worker’s disability is total, as here, where we have an uncontested temporary total disability from unskilled labor, he or she is entitled to the statutory minimum. The loss of earning capacity is total. What would be the logic in limiting one who is out of the job market, suffering an employment-related injury, to a penurious fraction of minimum disability benefits merely because at the moment of injury his working time was inconsistent with his capacity? Such a result is incorrect and inhumane.

If this appears to be in conflict with the Lahay decision, I suggest it is not. I do not criticize Lahay, and am not trying to avoid it. I distinguish Lahay where full-time working capacity was not impaired from this case where the incapacity is total from any employment.

I would affirm.

        Andrejwski v Wolverine Coal Co, 182 Mich 298; 148 NW 684 (1914).

       "The statute is a remedial one, enacted primarily for the benefit of the man who works in the pursuits subject to its provisions.” Grand Rapids v Crocker, 219 Mich 178, 189; 189 NW 221 (1922).


source: Caselaw Access Project

author: Cynar, J.

license: Public Domain

text:
    PEOPLE v FITCHETT
    Docket No. 43546.
    Submitted November 15, 1979, at Lansing.
    Decided March 17, 1980.
    Timothy R. Fitchett was convicted, on his plea of guilty, of breaking and entering an occupied dwelling with intent to commit a larceny therein, Oakland Circuit Court, Robert B. Webster, J., and sentenced to a term of imprisonment. In exchange for the plea a charge of burning a dwelling house was dismissed. Following his preliminary examination the defendant, who was 17 years old when the offenses were committed, requested youthful trainee status, which was denied. Defendant appeals by leave granted. Held:

    The Holmes Youthful Trainee Act is a remedial statute which is to be construed liberally. The age of the offender is a factor to be considered by a trial court when determining whether to grant youthful trainee status. However, an equally important factor is the seriousness of the offense. Given the nature of the offenses involved in this case, the trial court did not abuse its discretion in denying the defendant’s request for youthful trainee status.
    Affirmed.
    1. Criminal Law — Statutes — Holmes Youthful Trainee Act.
    The Holmes Youthful Trainee Act is a remedial statute and should be construed liberally (MCL 762.11 et seq.; MSA 28.853[11] et seq.).

    2. Criminal Law — Youthful Trainees — Seriousness of Offense — Age of Defendant.
    The seriousness of the offense is a factor intended by the Legislature to stand on an equal footing with age when the competing factors are weighed by a trial court in making a decision as to whether or not to grant a defendant youthful trainee status.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Ronald Weitzman, Assistant Prosecuting Attorney, for the people.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 579.
    [2] 21 Am Jur 2d, Criminal Law § 583 et seq.

      Clarence M. Gabel, for defendant.
    Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

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

   Cynar, J.

Defendant was convicted, upon his plea of guilty, of breaking and entering an occupied dwelling with the intent to commit larceny therein, MCL 750.110; MSA 28.305, and was sentenced to 1 to 15 years imprisonment. In exchange for tendering his plea, a charge of burning a dwelling house, MCL 750.72; MSA 28.267, was dismissed. Defendant appeals by leave granted.

The facts as admitted by defendant at his plea-taking proceeding indicated that a cohort of defendant gained entry into a dwelling house in Highland, Michigan, by breaking a window and climbing through it. He then opened a door and let in the defendant, whereupon the two searched the home for money and valuables. Next, the two looked for some gasoline with which to set fire to the dwelling. According to defendant, they were seen at this time, apparently by a neighbor. Defendant found a can of gasoline in the garage, carried it into the house, doused the floor with gas, and set fire to it. The pair then left the premises.

Following preliminary examination, defendant petitioned the trial cqurt for assignment to youthful trainee status under the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. The trial court’s denial of said petition forms the basis of this appeal.

Defendant contends that the trial court abused its discretion in denying him youthful trainee status. Defendant mounts a three-pronged attack on the lower court ruling, claiming that: (1) the legislative intent of the Youthful Trainee Act is to provide a remedial training opportunity for youthful offenders based primarily on their age; (2) as a remedial statute, the act should be liberally construed; and (3) denial of youthful trainee status to defendant, who was near to the lower age limit within which the act applies, on the basis of the gravity of the offenses with which defendant was charged was a clear abuse of discretion.

We agree with defendant that the Holmes Youthful Trainee Act is a' remedial statute and should be construed liberally. People v Bandy, 35 Mich App 53, 57; 192 NW2d 115 (1971), lv den 386 Mich 753 (1971). And certainly, age is a factor which must weigh heavily in the exercise of the lower court’s discretion, although we are not prepared to ascribe to it the primacy defendant urges us to. Also, there are without question other factors which must be examined and which will afect the balancing process.

However, contrary to the position proffered by the defendant, we believe that the seriousness of the offense is a factor intended by the Legislature to stand on an equal footing with age when the competing factors are weighed by the trial court in exercising its discretion. That this was intended by the Legislature is apparent on the face of MCL 762.11; MSA 28.853(11), which reads:

"Sec. 11. When a youth is alleged to have committed a criminal offense, other than murder in the ñrst degree or a major controlled substance offense, between the youth’s seventeenth and twentieth birthdays, the court of record having jurisdiction of the criminal offense may with the consent of both the affected youth and the youth’s legal guardian or guardian ad litem elect to consider and assign that youth to the status of youthful trainee.” (Emphasis added.)

The statute creates a class of offenses which per se exclude a youthful criminal offender from consideration for trainee status, thus divesting a trial court of any discretion in the matter. Implicit in this categorization is a legislative intendment that the nature and severity of any other crime(s) with which an eligible offender is charged should weigh heavily in the exercise of the trial court’s discretion with respect to granting trainee status. Given the nature and severity of the offenses charged in the case at bar, viz., breaking and entering an occupied dwelling with the intent to commit larceny, punishable by a maximum of 15 years incarceration, and arson of a dwelling house, which carries a 20-year maximum sentence, we conclude that: (1) the trial court could and did properly consider the species of offenses in its exercise of discretion; and (2) the trial court’s denial of youthful trainee status did not constitute a clear abuse of discretion in this case. Accordingly, we refuse to reverse the lower court on this point.

Finally, we find no infirmity in defendant’s sentencing, as we conclude that no improper factors were considered by the trial court in imposing sentence. People v Samuelson, 75 Mich App 228, 235; 254 NW2d 849 (1977), People v Means, 49 Mich App 570, 572; 212 NW2d 288 (1973), People v McIntosh, 62 Mich App 422, 441-446; 234 NW2d 157 (1975), modified on other grounds 400 Mich 1; 252 NW2d 779 (1977).

We find no error necessitating reversal and therefore affirm defendant’s conviction and sentence.

Affirmed.

       The age range within which the act applies is between a youth’s seventeenth and twentieth birthdays. MCL 762.11; MSA 28.853(11). Defendant was seventeen years old at the time the offenses were alleged to have been committed.


author: D. C. Riley, J.

text:
    HOFFMAN v MONROE PUBLIC SCHOOLS MENTEL v MONROE PUBLIC SCHOOLS
    Docket Nos. 43836, 43837.
    Submitted January 17, 1980, at Detroit.
    Decided March 18, 1980.
    Leave to appeal applied for.
    Joan Hoffman, Loretta E. Hoffman and Charles J. Mentel were passengers in an automobile driven by Rosemary Mentel when it was involved in a collision with a bus belonging to the Monroe Public Schools and driven by Jay S. Peters. The Hoff-mans and the Mentels brought actions for damages against the Monroe Public Schools and Jay S. Peters. The actions were consolidated for trial and a jury verdict was returned in favor of plaintiffs Joan and Loretta Hoffman and Charles Mentel against both defendants and in favor of defendants against Rosemary Mentel. The jury was polled and affirmed the verdict and was discharged. Following discharge the jurors told defense counsel that they had not meant to find against the the defendants. Defendants’ motion for a new trial was granted, and the second trial resulted in a verdict and judgment in favor of the defendants, Monroe Circuit Court, William J. Weipert, Jr., J. Plaintiffs appeal. Held:

    Once a jury has been polled and discharged its members may not challenge mistakes or misconduct inherent in the verdict. After that point oral testimony or affidavits by the jurors may only be received on extraneous or outside errors or to correct clerical errors or matters of form. When a unanimous verdict is announced in court and that verdict remains uncontroverted on the record through the end of proceedings, that verdict should stand unchallenged as it is the best evidence of the jury’s intent. The trial court erred in setting aside the first verdict for the sole reason of the claimed disparity between the informal agreement within the jury room and the formal on-the-record result at trial.
    Reversed and remanded for reinstatement of the original verdict and for judgment on that verdict.
    References for Points in Headnotes
    [1,2] 76 Am Jur 2d, Trial § 1219 et seq.

    Competency of jurors’ statements or affidavits to show that they never agreed to purported verdict. 40 ALR2d 1119.

      1. Jury — Jurors — Verdicts — Impeachment of Verdicts.
    Generally, jurors may not impeach their verdict by oral testimony or by affidavit.
    2. Jury — Jurors — Impeachment of Verdicts.
    Members of a jury, after the jury has been polled and discharged, may not challenge mistakes or misconduct inherent in the verdict, and oral testimony or affidavits by the jurors may only be received on extraneous or outside errors or to correct clerical errors or matters of form.

      Goldstein, Meklir, Schreier & Feldman, for plaintiffs.

      William J. Braunlich, Jr., for defendants.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   D. C. Riley, J.

This consolidated lawsuit arose out of an automobile accident which occurred in 1969. On March 25, 1976, a jury verdict was returned in favor of plaintiffs Joan and Loretta E. Hoffman and Charles J. Mentel against the defendants and in favor of the defendants against Rosemary Mentel, the driver of the car in which the other three plaintiffs were passengers. The jury was polled individually and affirmed the announced verdict. However, following discharge of the jury, the jurors approached the defendants’ attorney and told him that they had not meant to find against defendants. Defendants then moved for and were granted a new trial. This new trial resulted in a verdict being rendered for the defendants on December 29, 1978. Plaintiffs’ motion for new trial was denied. Plaintiffs now appeal as of right.

It is generally recognized that jurors may not impeach their verdict by oral testimony or by affidavit, McDonald v Pless, 238 US 264, 267; 35 S Ct 783; 59 L Ed 1300 (1915), Mattox v United States, 146 US 140, 148-149; 13 S Ct 50; 36 L Ed 917 (1892), Consumers Power Co v Allegan State Bank, 388 Mich 568, 573; 202 NW2d 295 (1972), People v Van Camp, 356 Mich 593, 601; 97 NW2d 726 (1959), People v Graham, 84 Mich App 663, 665; 270 NW2d 673 (1978), for, to permit unrestricted attacks would severely undermine the finality attached to judgments. See People v Rushin, 37 Mich App 391; 194 NW2d 718 (1971), Santilli v Pueblo, 184 Colo 432; 521 P2d 170 (1974). In addition, if the jury’s conclusions could always be questioned, tampering with the jury process would be encouraged and invasion of the private sanctity of the jury room invited. People v Pizzino, 313 Mich 97, 105; 20 NW2d 824 (1945), Graham, supra at 665-666, Rushin, supra, People v Lyle Brown, 37 Mich App 25, 32; 194 NW2d 450 (1971). See generally, Mueller, Juror’s Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b), 57 Neb L Rev 920 (1978), Ledy and Lefkowitz, Note: Judgment by Your Peers? The Impeachment of Jury Verdicts and the Case of the Insane Juror, 21 NYLF 57 (1975), Thorpe, Note: Evidence—Erroneous Recordation of Verdict—No Impeachment of Verdict by Affidavits of Jurors Allowed, 12 Wayne L Rev 888 (1966). In theory then, the finality policy is totally justifiable. However, when these public considerations are balanced against the private concerns of a wronged litigant, for example, when there has been prejudicial outside influences on the jury or a misrecorded verdict, flat application of the nonimpeachment rule may be inequitable. See McDonald, supra. The potential injustice inherent in rigid proscription has caused many jurisdictions to modify their impeachment rules. Under the "Ohio rule” for instance, juror’s affidavits will be considered when misconduct is first indicated by competent, independent evidence. See Farrer v State, 2 Ohio St 54 (1853). In at least 12 states, the "Iowa rule” is followed. Under this standard, affidavits are inadmissible to dispute matters which inhere in the verdict, such as juror thought processes and inter-juror inducements, but are admissible if they pertain to outside or extraneous inñuences. See Mattox, supra, 57 Neb L Rev, supra.

In Michigan, the present law on verdict impeachment is in great disarray. The advisory committee on adoption of the Michigan Rules of Evidence expressly declined to adopt a state counterpart of FRE 606(b) which would limit inquiry into the validity of a verdict or indictment; thus, we have no statutory guidelines. Committee Notes to MRE 606. Within the case law, there is language supportive of the "Iowa rule”, but this standard has never been expressly adopted. See Graham, supra, People v Moreland, 12 Mich App 483; 163 NW2d 257 (1968). There are two Supreme Court cases that dealt with this issue within the second half of this century, but neither formulated any consistent doctrine. See Metz v City of Bridgman, 371 Mich 586; 124 NW2d 741 (1963), Routhier v Detroit, 338 Mich 449; 61 NW2d 593 (1953). Finally, one panel of this Court attempted to clarify the motivations and standards underlying verdict finality but, evidently, was stymied by the earlier inconsistent and confusing rulings. See Rushin, supra.

In Routhier, supra, the Supreme Court upheld the trial court’s recalling of the jury the day after discharge. The Court stated that the judge properly set aside the verdict based on a juror’s affidavit that he had never agreed to the recorded verdict. In Metz, supra, the jury was polled and discharged. The Supreme Court upheld the trial court’s denial of a new trial despite a juror’s affidavit that he had only reluctantly agreed to the verdict. The Court "distinguished” Routhier by saying that in Metz there was a unanimous verdict (no matter for what reason) while in Routhier there apparently was not. This was in spite of the fact that in both cases a unanimous verdict was announced on the record.

Confronted with this divergent case law, the Court of Appeals panel in Rushin, supra, chose to limit its post-discharge jury problem decision to criminal cases. Although this distinction was declared to be based on the double-jeopardy clause, most of the policy and reasoning put forth by the panel throughout the opinion applies equally to both civil and criminal cases.

It is clear that in jurisdictions applying the "Iowa rule”, the claimed error in the instant case could not be investigated through juror affidavits. Looking behind a verdict to determine if the finding is contrary to the jury’s intent is directly contrary to the rule prohibiting examination of jury mental processes. Mitchell v Burleson, 466 SW2d 646 (Tex Civ App 1971). In Ford Motor Credit Co v Amodt, 29 Wis 2d 441; 139 NW2d 6 (1966), eight jurors claimed that the verdict was incorrect. The Supreme Court of Wisconsin held that this was not a proper subject for post-discharge investigation. The Colorado Supreme Court has held similarly. Santilli, supra.

A clear dividing line between allowing and disallowing verdict correction has been the discharge of the jury, often precursed by individual polling. Jury comment regarding errors inherent in the verdict will not be received after the jury is so released. Van Wart v Van Wart, 501 SW2d 359 (Tex Civ App 1973), Ford Motor Credit Co, supra. Michigan courts have recognized jury discharge, frequently coupled with polling, as the final expression or act of the jury. Metz, supra, In re Sorter’s Estate, 314 Mich 488, 493; 22 NW2d 767 (1946), Beaubien v Detroit United R Co, 216 Mich 391, 398; 185 NW 855 (1921), Brown, supra, Rushin, supra. Thus, it is only logical to incorporate this termination point into our adoption of the "Iowa rule”.

We hold that in all cases, whether civil or criminal, once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. After that point, oral testimony or affidavits by the jurors may only be received on extraneous or outside errors (such as undue influence by outside parties), or to correct clerical errors or matters of form. See Mattox, supra, Harrington v Velat, 395 Mich 359; 235 NW2d 357 (1975), Hampton v Van Nest’s Estate, 196 Mich 404; 163 NW 83 (1917), Marchlewicz v Stanton, 50 Mich App 344; 213 NW2d 317 (1973). Information on extraneous errors has always been permissible under the "Iowa rule”, since it does not relate directly to the thought processes or inner workings of the jury. We carve out an exception for clerical errors since, presumably, the correct information will already exist on the record and it will merely be a matter of conforming the written judgment to the earlier in-court statements; no invasion of the juror’s room or minds will be necessitated.

We acknowledge that a better rule would be that prohibited information will not be received following discharge alone, rather than following polling and discharge. However, this delineation would conflict with the almost 30-year-old case of Routhier. We believe that Routhier was wrongly decided and invite the Supreme Court to overrule that case and accordingly modify the standard outlined here. Since polling is a procedure that is waived if not promptly asserted, People v Willie Johnson, 58 Mich App 165, 169; 227 NW2d 272 (1975), Rushin, supra at 399-400, we believe that it was error in Routhier for the judge to conduct a poll the day after trial had ended. Further, our case law is replete with recognition of the principle that the jurors’ function as a jury terminates at discharge. Beaubien, supra, Rushin, supra. We are persuaded, therefore, that it was wrong for the trial judge in Routhier to reassemble the jurors after their discharge and dispersion to the influence of the community at large. Finally, we find no real distinction between allowing questioning of jury proceedings where there is a claimed lack of unanimity in the agreement reached in the jury room (Routhier) as opposed to not allowing questioning where there is a claimed lack of unanimity in the reasoning supporting that agreement (Metz). When a unanimous verdict is announced in court and that verdict remains uncontroverted on the record through the end of proceedings, we believe that that verdict should stand unchallenged as it is the best evidence of the jury’s intent. See Beaubien, supra at 398. At no other point can one be more sure that the statement represents the uncontaminated, freewilled choice of the jury.

In Pizzino, supra, 105, the Supreme Court quoted from 8 Wigmore on Evidence (3rd ed), § 2355, p 4:

" 'Hence, the fact that the verdict as delivered was by one or more individual jurors not assented to by them in the jury-room, or is different from the one there informally assented to by them, is no ground for later correcting or setting aside the verdict.’” (Emphasis added.)

We must conclude that the judge in this case erred in setting aside the first verdict following individual polling and the discharge of the jury, when the sole reason for doing so was the claimed disparity between the informal agreement within the jury room and the formal, on-the-record, unanimously and individually reiterated result at trial. See Metz, supra, Rushin, supra. This error unequivocally mandates reversal.

In light of the disposition of this case, plaintiffs’ other contentions need not be addressed.

Reversed and remanded for reinstatement of the original verdict and for judgment on that verdict.


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

text:
    PEOPLE v BLOYD
    Docket No. 43903.
    Submitted January 17, 1980, at Detroit.
    Decided March 18, 1980.
    Leave to appeal applied for.
    Omer Bloyd was charged with breaking and entering. Defendant moved to suppress evidence and to quash the information. The motions were heard by the Wayne Circuit Court, George T. Martin, J. The record shows that defendant’s automobile was observed by a police officer exiting from a closed construction yard in the early hours of a Sunday morning. The officer stopped defendant’s automobile, at which time the officer observed boxes of movies and magazines, a pair of gloves, a screwdriver, a prybar and pliers in the automobile. The defendant, who was visibly perspiring, was advised of his rights and detained in the officer’s patrol car. It was thereafter determined that a nearby theater and bookstore had been burglarized. The trial court denied the motions to suppress the evidence and quash the information. Defendant appeals by leave granted. Held:

    1. While the circumstances justified the investigatory stop by the police officer, and the officer was therefore properly in the position where he observed the items in the defendant’s automobile, seizure of the items observed in the automobile cannot be justified on the basis of the plain view doctrine. The items observed are not inherently illegal in nature and, at the time of observing them, the officer did not have probable cause to believe that those items were connected with any particular crime. For the same reasons, the officer did not have probable cause to arrest defendant, and, accordingly, the seizure of the evidence cannot be justified on the basis of seizure pursuant to a lawful arrest.

      References for Points in Headnotes
    [1,5] 68 Am Jur 2d, Searches and Seizures §§ 42, 45.
    Search and seizure: "Furtive” movement or gesture as justifying police search. 45 ALR3d 581.
    [2] 68 Am Jur 2d, Searches and Seizures § 88.
    [3] 68 Am Jur 2d, Searches and Seizures §§ 41-45.
    [4] 29 Am Jur 2d, Evidence §§ 408, 412.
    Violation of federal constitutional rule (Mapp v Ohio) excluding evidence obtained through unreasonable search and seizure, as constituting reversible or harmless error. 30 ALR3d 128.

      2. The trial court clearly erred in its denial of the motion to suppress and in its denial of the motion to quash the information. Under the circumstances, reversal and remand to the trial court for entry of an order quashing the information is mandated.
    Reversed and remanded.
    M. J. Kelly, P.J., dissented. He would hold that both the investigatory stop and the brief detention of defendant while the officer determined whether the nearby businesses had been burglarized was justified. He would hold that the trial court did not clearly err in denying the motions to suppress the evidence and to quash the information. He would affirm.
    Opinion of the Court
    1. Criminal Law — Automobiles — Police Officers — Investigatory Stops — Suspicion — Reasonableness.
    A police officer may properly stop an automobile which is observed leaving the parking lot of a closed business in the early morning hours for the questioning of the occupant about the oddly timed departure, where the circumstances are such as to create a reasonable suspicion in the mind of the officer.
    2. Searches and Seizures — Automobiles — Plain View .— Warrants — Contraband — Probable Cause.
    The warrantless seizure of items observed by a police officer in an automobile cannot be justified on the basis of the plain view doctrine where, although the officer is properly in his viewing position by reason of a valid stop, the items are not inherently illegal in nature and the officer does not have probable cause to believe that the items are connected with a particular crime.
    3. Searches and Seizures — Automobiles — Lawful Arrest — Probable Cause.
    Seizure of items observed by a police officer in an automobile following a lawful stop cannot be justified on the basis of a seizure pursuant to a lawful arrest where, while the circumstances are sufficient to justify a stop for investigation, the circumstances are not sufficient to establish probable cause to believe that a crime has been committed and that the person detained committed a crime; accordingly, the arrest is illegal and the seizure of the items is likewise illegal.

      4. Appeal — Criminal Law — Evidence — Motion to Suppress — Quashing of Information.
    It is clearly erroneous for a trial court to deny a motion to suppress evidence and to fail to quash an information where the defendant was unlawfully arrested ahd the evidence was seized pursuant to that arrest.
    Dissent by M. J. Kelly, P.J.
    5. Searches and Seizures — Automobiles — Police — Investigatory Stops — Limited Detention.

      The arrest of the driver of an automobile observed exiting from a closed construction yard in the early hours of a Sunday morning and the seizure of items observed in the automobile are proper, since, under these circumstance, a police officer is not only justified in stopping the automobile for the purpose of investigation, but is also justiñed in briefly detaining the driver until the officer can determine whether any nearby businesses had been burglarized.

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

      Brook McCray Smith, for defendant.
    Before: M. J. Kelly, P.J., and Bronson & D. C. Riley, JJ.
   D. C. Riley, J.

Defendant appeals an interlocutory order denying his motion to suppress evidence and to quash the information.

Prior to defendant’s arrest for breaking and entering, contrary to MCL 750.110; MSA 28.305, defendant was stopped by a police officer for investigation, and the evidence in question was seized from his automobile. Defendant claims that the stop, seizure and subsequent detention were all illegal, thus, the denial of his motion was improper.

Defendant first challenges the legality of the police officer's stop. Police officers may "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest”. Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Stops may be made to determine a person’s identity, Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), or to obtain information on crimes. Id., People v DeFillippo, 80 Mich App 197, 202; 262 NW2d 921 (1977), rev’d on other grounds 443 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979), People v Jeffries, 39 Mich App 506, 511; 197 NW2d 903 (1972).

In the instant case, an officer observed defendant’s automobile leaving the parking lot of a closed business in the early morning hours. We believe that the officer’s stopping of defendant to question him regarding this oddly timed departure was reasonable. United States v Brignoni-Ponce, 422 US 873, 879-880; 95 S Ct 2574; 45 L Ed 2d 607 (1975). See People v Martin, 94 Mich App 649; 290 NW2d 48 (1980).

While a reasonable suspicion will suffice for a stop, People v Lillis, 64 Mich App 64, 70; 235 NW2d 65 (1975), probable cause must exist for any subsequent seizure of persons or objects. People v Summers, 407 Mich 432; 286 NW2d 226 (1979). Moreover, the facts upon which the probable cause is premised must exist at the time of the seizure. See People v Langston, 57 Mich App 666, 672; 226 NW2d 686 (1975).

In the instant case, we have concluded that the police officer properly stopped the defendant for questioning. At that time, the officer could see through the window that defendant’s car contained some boxes of movies and magazines, a pair of gloves, a screwdriver, a prybar and pliers. The prosecution argued below that the plain view doctrine allowed the arresting officer to lawfully seize these items without a search warrant.

One requirement of the plain view rule is that the officer must properly be in his viewing position. Since there was a valid stop in this case, this threshold element was satisfied. See People v Whalen, 390 Mich 672, 679-680; 213 NW2d 116 (1973). However, this exception to the search warrant requirement is also subject to the limitation that the officer must have probable cause to believe that the seized objects are implements or evidence of crime. People v Young, 89 Mich App 753, 758; 282 NW2d 211 (1979). Here the officer had no probable cause to believe that he was seizing evidence or implements of crime. Unlike a case where an officer is confronted with contraband or weapons, there is nothing inherently illegal about the items seized. Further, the officer had no knowledge of any reported crime related to the objects, there was no indication of a break-in at the construction company property at which defendant was stopped, and there was little chance that the seized goods — ordinary tools, movies and books —could have been taken from that property. Thus, the seizure cannot be justified under the plain view doctrine.

Another exception to the search warrant requirement is that the seizure be incident to a lawful arrest. See People v Morris, 66 Mich App 514; 239 NW2d 649 (1976). Although not formally arrested when the items were removed, defendant was for all practical purposes arrested at that time, since he had been advised of his rights and was being detained in the officer’s patrol car. Such seizure-detentions require that an officer have probable cause to believe that an offense has been committed and that the suspect committed it. Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979), Summers, supra. Without such probable cause, the arrest is illegal, Langston, supra, 672, and the items seized because of the illegal arrest must be excluded. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).

A trial court’s suppression of evidence ruling is reviewed under a "clearly erroneous” standard. Reversal is mandated where, after reviewing all the evidence, the appellate court believes that a vital error has been committed. People v Goss, 89 Mich App 598, 601; 280 NW2d 608 (1979).

In the case before us, we believe that the trial court erred in refusing to suppress the evidence or quash the indictment. At the time of defendant’s arrest, there was no probable cause to link either defendant or the seized items to any particular crime. The arrest and seizure were in clear violation of the law at the time of the lower court’s ruling, Young, supra, 758, People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975), and as subsequently clarified. Dunaway, supra, Summers, supra. Therefore, reversal is mandated.

Reversed and remanded to allow the trial judge to quash the information.

Bronson, J., concurred.

M. J. Kelly, P.J.

(dissenting). This case presents a very close question, but we review the trial court’s ruling under the "clearly erroneous” standard. I would say that the trial court’s ruling in this case is not clearly erroneous.

Since the majority agrees that the initial stop was justified, the plain view doctrine was properly invoked and certainly the officer's suspicions were properly aroused.

The defendant had exited from a closed construction yard in the early hours of Sunday morning. He was visibly perspiring. The officer saw a prybar, a flashlight, cotton gloves, a screwdriver and three plastic bags of magazines and boxes of movies. It seems to me a short detention to determine if two nearby businesses, a bookstore and a theater, had been burglarized was justifiable under the circumstances. See United States v Richards, 500 F2d 1025 (CA 9, 1974). This is more an example of good police work than of an unwarranted, unconstitutional intrusion on the defendant’s right to privacy. I do not think the trial court’s ruling was clearly erroneous. I believe leave to appeal was unwarranted and I would remand this case for trial.


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

text:
    O J ENTERPRISES, INC v INSURANCE COMPANY OF NORTH AMERICA
    Docket No. 44509.
    Submitted December 18, 1979, at Detroit.
    Decided March 18. 1980.
    Leave to appeal applied for.
    A building owned by O. J. Enterprises, Inc. and insured by Insurance Company of North America was destroyed by fire. O. J. Enterprises submitted a proof of loss which the insurer rejected as being unsubstantiated. O. J. Enterprises then sought appraisal of the loss pursuant to the insurance policy and brought an action against the insurer seeking payment of benefits under the policy. The circuit court appointed an umpire-appraiser who made a determination of the amount of loss, and the insurer paid that amount to the plaintiff within 60 days. A judgment was thereafter entered in the Oakland Circuit Court, Francis X. O’Brien, J., in the amount of the award, plus 6 percent interest from the date of the commencement of suit. Plaintiff appeals the denial of 12 percent interest and defendant cross-appeals, alleging that no interest at all should have been awarded. Held:

    1. The statute which allows for an award of 12 percent interest applies only where an insurer procrastinates in paying a meritorious claim. Another statute allows an insurer 60 days in which to pay a claim after ascertainment of the amount of loss. In this case the defendant paid the award within 60 days of the appraisal; therefore, the 12 percent interest provision does not apply.
    2. The award of 6 percent interest was not appropriate in this case, where the insurer did not contest the amount of loss as determined by the appraiser and paid the award within the statutory period.
    Affirmed in part, reversed in part.
    1. Interest — Insurance — Penalties — Statutes.
    The statutory provision for payment of 12 percent interest by an insurer which does not pay benefits to its insured in a timely manner is a penalty which is to be assessed only against insurers which procrastinate in paying meritorious claims (MCL 500.2006[4]; MSA 24.12006[4]).

      References for Points in Headnotes
    [1] 44 Am Jur 2d, Insurance §§ 1600, 1797, 1798.
    [2, 3] 44 Am Jur 2d, Insurance § 1798.

      2. Insurance — Fire Insurance — Loss Payable — Statutes.
    An insured loss under a Michigan standard fire insurance policy is payable, where the amount of the loss is reasonably disputed by the insurer and the insured and the matter is submitted to a court-appointed appraiser, up to 60 days after the appraiser’s determination of the amount of loss, and the 12 percent interest penalty does not apply where payment is made within that 60 days (MCL 500.2006[4], 500.2832; MSA 24.12006[4], 24.14832).
    3. Interest — Insurance — Appraiser’s Award — Statutes.
    An award of statutory interest is not appropriate in a case where an insurer did not contest the amount of a loss determined by a court-appointed appraiser so that judicial intervention was necessary to settle the award but acquiesced to the appraiser’s decision and paid the full award within the statutory period for payment of such claims (MCL 600.6013; MSA 27A.6013).

      Bacalis & Associates, P.C., for plaintiff.

      Harvey, Kruse & Westen, P.C. (by Francis H. Porretta), for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
   D. C. Riley, P.J.

Prior to January 3, 1978, defendant issued an insurance policy to plaintiff covering a building located in Farmington Hills, Michigan. On that date the building was substanially destroyed by fire. It had previously been insured for about $70,000 by the prior owner. Plaintiff purchased the building with the intention of adding $90,000 worth of improvements and, therefore, insured the premises for $160,000. At the time of the fire, however, no improvements had been made.

On February 22, 1978, plaintiff submitted to defendant a claimed proof of loss of $200,000. Defendant accepted this as a timely claim under the terms of the policy but expressly rejected the loss figure as unsubstantiated.

Defendant advanced plaintiff $26,000 on May 23, 1978. Within the next few days, plaintiff sought appraisal of the loss pursuant to the policy and brought suit in Oakland County, seeking benefits under the policy. The court appointed an umpire-appraiser in accordance with the Michigan Standard Fire Policy statute, MCL 500.2832; MSA 24.12832, who determined on November 14, 1978, that $88,796 was due plaintiff under the policy. On January 8, 1979, less than 60 days from the date of the appraisal award, defendant paid plaintiff $62,796, the amount of the award less the $26,000 advancement.

A judgment in the amount of $88,796 was entered by the Oakland County Circuit Court on March 21, 1979.. The court also ordered defendant to pay plaintiff 6 per cent interest, pursuant to MCL 600.6013; MSA 27A.6013, on the $62,796 owed from the date of this suit’s commencement. The court stated that plaintiff was not entitled to 12 per cent interest pursuant to MCL 500.2006; MSA 24.12006. Plaintiff appeals, contesting the denial of 12 per cent interest and defendant cross-appeals, challenging the granting of 6 per cent interest.

We will first address the denial of the 12 per cent interest. Under MCL 500.2006(4); MSA 24.12006(4), an insured is entitled to 12 per cent interest where an insurer does not timely pay benefits. The statute states:

"(4) When benefits are not paid on a timely basis the benefits paid shall bear simple interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% [per cent] per annum, if the claimant is the insured or an individual or entity directly entitled to benefits under the insured’s contract of insurance.” (Emphasis added.)

We believe that the 12 per cent interest statute was never triggered in this case because the proof of loss originally submitted was not "satisfactory”, but was the subject of an appraisal dispute which was settled under the terms of the Michigan Standard Fire Policy statute, MCL 500.2832; MSA 12832.

The 12 per cent interest rate is a penalty to be assessed only against insurers who procrastinate in paying meritorious claims. Fletcher v Aetna Casualty & Surety Co, 80 Mich App 439, 445; 264 NW2d 19 (1978). It is inconceivable that the Michigan Legislature in enacting the two statutes would have intended to penalize insurers for seeking settlement of a disputed claim through the appraisal process. We must conclude that when the amount of the loss is reasonably disputed by the insurer and the insured and the matter is submitted to a court-appointed appraiser, MCL 500.2006(4); MSA 24.12006(4) should be read in conjunction with MCL 500.2832; MSA 24.12832. This statute states under "when loss payable”:

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

Therefore, insurers will be allowed up to 60 days from the date of the appraiser’s award to pay awarded benefits to policy holders.

In the instant case, the appraisal of $88,796 was made on November 14, 1978. The defendant paid plaintiff the remainder of the sum owed on January 8, 1979, within the 60-day period, hence, the 12 per cent interest penalty was never triggered. It must be concluded that the trial judge correctly denied interest under MCL 500.2006(4); MSA 24.12006(4).

Defendant contends that the trial court erred in entering judgment in the amount of the appraisal award and in ordering that 6 per cent judgment interest, pursuant to MCL 600.6013; MSA 27A.6013, be paid on that award. We agree. This is not a case where the insurer contested the amount of loss determined by the appraiser so that judicial intervention is necessary to settle the award. See Davis v National American Ins Co, 78 Mich App 225; 259 NW2d 433 (1977), Linford Lounge, Inc v Michigan Basic Property Ins Ass’n, 77 Mich App 710; 259 NW2d 201 (1977). Here the insurer acquiesced to the umpire’s decision and paid the full award within 60 days. In such cases, entry of a judgment accompanied by 6 per cent statutory interest is inappropriate. See Thermo-Plastics R & D, Inc v General Accident Fire & Life Assurance Corp, Ltd, 42 Mich App 418, 422; 202 NW2d 703 (1972).

Affirmed in part, reversed in part.

Costs to defendant.