text:
    WAYNE COUNTY PROSECUTOR v RECORDER’S COURT JUDGE (PEOPLE v BUCKNER)
    Docket No. 77-3699.
    Submitted June 8, 1979, at Detroit.
    Decided August 21, 1979.
    Sandra Buckner was charged with second-degree murder in the shooting death of her husband. Recorder’s Court of Detroit, Samuel C. Gardner, J., refused to bind Ms. Buckner over for trial on the ground that the shooting was in self-defense. The Wayne County Prosecuting Attorney sought superintending control in Wayne Circuit Court. James N. Canham, J., denied superintending control on grounds that the magistrate did not abuse his discretion in refusing to bind over. The prosecutor appeals. Held:

    The magistrate abused his discretion in refusing to bind Ms. Buckner over for trial. There was credible evidence both supporting and negating the existence of malice; therefore, a question of fact was presented which should have been left for jury consideration.
    Reversed and remanded.
    1. Criminal Law — Preliminary Examination — Witnesses — Credibility — Discretion — Appeal and Error.
    A magistrate may weigh the credibility of witnesses and reject testimony he does not find credible at a preliminary examination to determine whether a defendant charged with a crime should be bound over for trial; where he refuses to bind a defendant over the question on appeal is whether his decision was an abuse of discretion.
    2. Criminal Law — Preliminary Examination — Prosecutors — Elements of Crime — Evidence.
    A prosecutor must produce evidence to establish each element of the charged offense at a preliminary examination or evidence from which those elements may he inferred.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 449-451.
    Propriety of consideration of credibility of witnesses in determining possible cause at state preliminary hearing. 84 ALR3d 811.

       40 Am Jur 2d, Homicide § 265.

      3. Homicide — Malice — Deadly Weapon — Inferences.
    The element of malice may be inferred from the use of a deadly weapon.
    4. Homicide — Preliminary Examination — Magistrates — Conflicting Evidence — Malice — Questions of Fact — Jury.
    It is not the function of an examining magistrate to carefully weigh the evidence and discharge the accused when the evidence conflicts or raises a reasonable doubt of his guilt; such questions should be left for the jury; at a preliminary examination of an accused charged with murder, where there is credible evidence both supporting and negating the existence of malice, a question of fact is presented which should be left for jury consideration.

      William L, Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Alphonso R. Harper (by A. George Best, II), for defendant Recorder’s Court Judge.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

The Wayne County Prosecutor brings this appeal as of right from an order of the Wayne County Circuit Court denying plaintiffs petition for an order of superintending control requiring defendant Recorder’s Court Judge Samuel C. Gardner to bind over one Sandra Buckner on a charge of second-degree murder.

Sandra Buckner was charged in a one-count information with second-degree murder, MCL 750.317; MSA 28.549, in the shooting death of her husband. At the preliminary examination on the charge, defendant’s eight-year-old son testified that he was present in the home on the day of the shooting, that defendant and the deceased were arguing about money, that deceased struck defendant and that defendant got a gun. The deceased left the house, but returned after a short time, and the dispute continued. The boy saw the gun in his mother’s hand before being sent from the room. From another room, he heard his stepfather say, "Go ahead and shoot me”. He heard shots, and looked into the living room to find his mother calling the police. The only other witness presented by the prosecution was the medical examiner, who testified that the autopsy revealed the cause of death to be multiple gunshot wounds: one to the right side of the neck, one to the left chest, one to the left abdomen, two to the back of the body and one to the side.

Defendant testified on her own behalf, in opposition to the bindover. She testified that, on the day of the shooting, her husband was drunk and belligerent. They quarrelled and he struck her, knocking her down. She got the gun from the bedroom and told him to leave her alone. He threatened to kill her and walked toward her, backing her into a corner. He threatened to take the gun and beat her to death with it, and reached toward her. She began screaming, and he fell to the floor. She then called the police. Ms. Buckner testified that she had no memory of shooting her husband.

The prosecutor moved to bind over and defense counsel objected on grounds that the evidence established that the shooting was done in self-defense. The prosecutor argued that the evidence that the deceased was shot six times, twice in the back, raised a jury question on the issue of self-defense. The magistrate, however, refused to bind over, stating that he believed that it was self-defense.

The prosecutor sought a writ of superintending control in Wayne County Circuit Court. The writ was denied on grounds that the magistrate did not abuse his discretion in refusing to bind over. We disagree, and reverse.

Respondent magistrate argues in his brief on appeal that he properly weighed the evidence and the credibility of the witnesses, and concluded that the prosecution did not establish the element of malice, citing People v Paille #2, 383 Mich 621; 178 NW2d 465 (1970). While we agree that the magistrate may weigh the credibility of witnesses and reject testimony which he does not find credible, that is not the situation presented in this case. In Paille, supra, the sole evidence that the crime charged had been committed was the testimony of alleged eyewitnesses, which the magistrate characterized as so incredible that it "could not possibly convince a disinterested arbiter of facts of their good faith or their truthfulness”, quoted in Paille, supra, at 624. In the case before us, the evidence consisted of the testimony of defendant and her son and the evidence of the medical examiner that the deceased was shot six times, including two shots in the back. The magistrate made no finding that he found any of the testimony incredible.

The magistrate having heard and considered all evidence presented, the question becomes whether he abused his discretion in refusing to bind over, see People v Paille #2, supra. At the preliminary examination, the prosecutor must produce evidence to establish each element of the offense, or "evidence from which those elements may be inferred”, People v Oster, 67 Mich App 490, 494; 241 NW2d 260 (1976). Although respondent concedes that malice may be inferred from Use of a deadly weapon, he argues that such an inference may not be drawn where there is evidence to the contrary. We find no support in recent case law for such a proposition, see People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975), People v Ray, 56 Mich App 610; 224 NW2d 735 (1974). Nor does the early cáse cited by respondent support the proposition, for there was evidence of self-defense in the cited case, People v Collins, 166 Mich 4; 131 NW 78 (1911).

The limited function of the magistrate in weighing conflicting testimony was well stated in People v Oster, supra, at 496:

"It must be remembered that it is not the function of the examining magistrate to carefully weigh the evidence and discharge the accused when the evidence conflicts or raises a reasonable doubt of his guilt; such questions should be left for the jury. People v Medley, 339 Mich 486; 64 NW2d 708 (1954).”

Accord, People v Doss, 406 Mich 90; 276 NW2d 9 (1979). In the case at bar, there was. credible evidence both supporting and negating the existence of malice, presenting a question of fact which should have been left for a jury.

We are of the opinion that the magistrate abused his discretion in refusing to bind the defendant over on the facts of this case. The order of the circuit court is reversed and the case is remanded to the Recorder’s Court with instructiohs to bind defendant Sandra Buckner over for trial on a charge of second-degree murder.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DECHERT v GENERAL MOTORS CORPORATION
    Docket No. 78-571.
    Submitted May 14, 1979, at Detroit.
    Decided August 21, 1979.
    Plaintiff, Ima Dechert, worked for defendant General Motors Corporation until she suffered an injury. She quit her employment and received disability benefits for 500 weeks. Later she applied for and received a disability pension. Then she filed a claim against GM and the Second Injury Fund for total and permanent disability, alleging loss of industrial use of both legs. The Bureau of Workmen’s Compensation Administrative Law Judge, Claudia Morcom, found for plaintiff and awarded compensation. The Workmen’s Compensation Appeal Board reversed. Plaintiff appeals by leave granted. The issue on appeal is: Is the ability to return to favored work a sufficient basis on which to deny worker’s disability benefits for total and permanent loss of industrial use of both legs? Held:

    The economic impact of an injured claimant’s ability to perform favored work is irrelevant to the decision of cases claiming loss of industrial use of both legs, but the physical abilities of an injured claimant are germane to the factual question and should not be ignored merely because the capacity for use of the legs is expressed in terms of a claimant’s ability to perform a particular type of work.
    Remanded with instructions.
    1. Workmen’s Compensation — Industrial Use of Legs.
    A leg-connected disabling pain which is so severe as to make use of the legs in industry practically impossible constitutes total and permanent loss of industrial use of both legs.
    2. Workmen’s Compensation — Industrial Use of Both Legs — Ability to Perform Favored Work.
    The economic impact of an injured claimant’s ability to perform favored work is irrelevant to the decision of cases claiming loss of industrial use of both legs, but the physical abilities of an injured claimant are germane to the factual question and should not be ignored merely because the capacity for use of the legs is expressed in terms of a claimant’s ability to perform a particular type of work.

      References for Points in Headnotes

       82 Am Jur 2d, Workman’s Compensation § 340.

       82 Am Jur 2d, Workman’s Compensation § 338 et seq.

      Dietrich & Cassavaugh, P.C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph M. Binno, Assistant Attorney General, for defendant Second Injury Fund.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   Per Curiam.

Plaintiff, Ima Dechert, started work for defendant General Motors in 1950 or 1951. In 1955 or 1956, she began experiencing back and leg pains, which led to back surgery. She worked intermittently until January, 1962, when she left General Motors due to her health difficulties. General Motors voluntarily paid disability benefits to the plaintiff for 500 weeks, the benefits terminating in March, 1970. Later that year she applied for and began receiving a disability pension; she was 51 years old at that time, and explained that she had not applied for the pension at an earlier date because she had had hope of being able to return to work.

In 1973, the plaintiff filed this claim for total disability benefits, claiming a permanent and total loss of industrial use of both legs.

At a hearing before the Bureau of Workmen’s Compensation administrative law judge, the plaintiff testified that she continues to experience back and leg pain but can do light housework, gardening and grass cutting and that she can shop, drive ah automobile and play golf.

The plaintiff’s former family physician testified that he treated the plaintiff until 1966, at which time, in his opinion, her back surgery and persistent pain had rendered her permanently unable to work. Other physicians gave conflicting testimony as to plaintiff’s limitations.

Relying on the testimony of the family physician, the administrative law judge found that the plaintiff had experienced total permanent disability commencing on January 5, 1962, and ordered the defendants to pay compensation from that date, not to exceed 800 weeks from the injury date.

On appeal, the Workmen’s Compensation Appeal Board (WCAB) reversed the decision of the administrative law judge finding in part:

"* * * plaintiff has failed to sustain her burden of proving permanent and total loss of industrial use Of both legs. * * *
Beyond a doubt, she cannot return to common labor jobs requiring frequent bending, lifting, turning and stooping and has therefore demonstrated work-related disability in the field of common labor. However, these restrictions do not mean she is permanently and totally disabled. The testimony merely demonstrates that she Can return to favored work which takes her restrictions into consideration.” (Emphasis in original.)

The plaintiff's application for leave to appeál the decision of the WCAB to this Court was met with ah order to súbmit a supplemental brief on the issue:

"Is the ability to return to favored work a sufficient basis on which to deny worker’s disability benefits for permanent and total loss of industrial use of both legs?” (Emphasis in original.)

Upon submission of that brief, leave to appeal was granted. Only defendant Second Injury Fund haS filed a responsive brief.

The plaintiffs claim was decided by the WCAB under the provisions of MCL 412.10(b)(7); MSA 17.160(b)(7), now MCL 418.361(2)(g); MSA 17.237(361)(2)(g), which reads, in pertinent part:

"(2) Total and permanent disability, compensation for which is provided in section 351 means:
"(g) Permanent and total loss of industrial use of both legs * *

In Miller v Sullivan Milk Products, Inc, the Court held:

"In Hutsko v. Chrysler Corporation (1968), 381 Mich 99, this Court said (p 102):
" 'Michigan has 2 types of workmen’s compensation benefits, wage loss disability payments and specific or schedule loss payments. The first type is dependent upon proof of a wage loss resulting from an industrial injury. It is a differential payment computed oh what wage the injured workman is able to earn after his injury and the wage he was earning at the time he was injured. If there is no difference he receives no benefits. The second type is a specific loss benefit paid under a schedule of losses applicable to certain designated organs or anatomical members. To this benefit the injured workman is entitled during the period provided in the schedule, irrespective of any wages he receives whether greater or less than those he received at the time of his injury. ’ (Emphasis added.)
"A review of specific loss cases reveals that loss of 'industrial use’ is a question of fact. The test of that fact has been to equate such a loss with the physical or anatomical loss of use of a member of the body rather than with an economic reality test. (Citations omitted.) If 'loss of use’ is established, recovery follows even though there are no economic consequences from the loss. See Hutsko v. Chrysler Corporation, supra, pp 102-104.” Miller v Sullivan Milk Products, Inc, 385 Mich 659, 665-666; 189 NW2d 304 (1971).

The WCAB’s mention of "favored work” raises some question as to whether the correct legal standard has been applied in denying the plaintiffs claim. In wage-loss disability cases, in which an injured employee’s reduced earning capacity is an issue, the ability of the employee to perform favored work tailored to his new disability may not be considered as a factor increasing his post-injury earning capacity and therefore reducing his benefits. Evans v United States Rubber Co, 379 Mich 457; 152 NW2d 641 (1967). If favored work may not be considered in measuring a disability in which economic loss is nevertheless a proper consideration, it is surely improper to consider the economic impact of favored-work capacity in determining a claim which, like a specific-loss claim, is completely unconnected with actual economic injury.

Whether a claimant has totally and permanently lost the industrial use of his legs is a question of fact for the WCAB. Miller, supra. If there is "any evidence whatever” to support the WCAB’s finding, the ruling will not be disturbed by this Court. However, the courts have the duty to ensure that the WCAB applies the correct legal standards to the evidence before it. Thornton v Luria-Dumes Co-Venture, 347 Mich 160; 79 NW2D 457 (1956).

In Paulson v Muskegon Heights Tile Co, 371 Mich 312; 123 NW2d 715 (1963), disabling pain resulting from the use of the claimant’s legs was asserted to entitle the claimant to benefits for total and permanent disability. The Court offered a definition:

"We construe the statute to mean that permanent and total loss of industrial use, insofar as the facts in this case are concerned, is that leg-connected disabling pain associated primarily with the use of the legs, which is so severe as to make use of the legs in industry practically impossible.” 371 Mich 312, 319.

Paulson, supra, set forth what we believe to be the governing definition of "loss of industrial use”. The economic impact of an injured claimant’s ability to perform favored work is irrelevant to the decision of cases claiming benefits for such a loss. However, the physical abilities of an injured claimant are germane to the factual question faced by the WCAB in such cases, and should not be ignored merely because the capacity for use of the legs is expressed in terms of a claimant’s ability to perform a particular type of work.

The opinion of the WCAB does not clearly reflect the use it made of the evidence of the plaintiffs ability to return to her cushion sorting job. The unfortunate choice of the term "favored work”, which is associated with an improper analysis of claimants’ post-injury economic situations, raises a significant question whether the correct legal standards were applied to the plaintiffs claim. Therefore the board should reconsider this case in light of this opinion and clarify its findings as to what, if any, use plaintiff could make of her legs in industry in "favored work” or otherwise.

The remaining contentions of the plaintiff are without merit.

The decision of the WCAB is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

We retain jurisdiction.


text:
    PEOPLE v FLORES
    Docket No. 78-934.
    Submitted June 14, 1979, at Lansing.
    Decided August 21, 1979.
    Leave to appeal denied, 407 Mich 932.
    Arthur Fibres was convicted both of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the first degree and of first-degree criminal sexual conduct where the sexual penetration was accomplished by use of force or coercion causing personal injury to the victim, Oakland Circuit Court, John N. O’Brien, J. The defendant appeals, by leave granted, alleging that 1) his arrest without warrant was without probable cause and, thus, all evidence admitted at trial flowed from the illegal arrest and should be suppressed, 2) the trial court erred in admitting the testimony of the complainant’s 13-year-old neighbor regarding the youth’s discovery of footprints in the snow which led from the complainant’s home to the house in which the defendant was found, and 3) the convictions both of breaking and entering an occupied dwelling with intent to commit first-degree criminal sexual conduct and of criminal sexual conduct in the first degree arising out of the same transaction constitute double jeopardy. Held:

    1. At the time of the arrest of the defendant the arresting officers had sufficient probable cause to effect the arrest without a warrant. Since the arrest without a warrant was valid, evidence seized incident to that arrest was properly obtained and was admissible into evidence at the subsequent trial.
    2. The evidence regarding the footprints in the snow was both logically and legally relevant. The trial judge did not abuse his discretion in ruling on the televancy and admissibility of the evidence.

      References for Points in Headnotes

       29 Ani Jur 2d, Evidence §§ 425, 426.
    5 Am Jur 2d, Appeal and Error § 776.

       5 Am Jur 2d, Appeal and Error § 776 et seq.

       5 Am Jur 2d, Appeal and Error § 772 et seq.

       13 Am Jur 2d, Burglary § 50.
    Breaking and entering of inner door of building as burglary. 43 ALR3d 1147.

       21 Am Jur 2d, Criminal Law § 188.
    Double jeopardy under statutes relating to sexual psychopaths. 24 ALR2d 354.

      3. The offense of breaking and entering an occupied dwelling with the intent’ to commit first-degree crimihal sexual conduct was shown once the prosecution established 1) the breaking and entering of 2) an occupied dwelling with 3) felonious intent. The subsequent commission of first-dégrée criminal sexual conduct where the sexual penetration was accomplished by use of force or coercion causing personal injury to the victim was another offense that was factually and legally independent of the breaking and entering offense. There was no double jeopardy.
    Affirmed.
    1. Criminal Law — Evidence — Suppression of Evidence — Appeal and Error — Motions — Timeliness.
    . Failure to make a timely motion to suppress evidence precludes consideration on appeal of alleged error in the admission of the evidence where 1) the evidence complained of was merely cumulative, 2j exclusion of the evidence would not have meant acquittal and 3) other evidence of guilt was overwhelming.
    2. Appeal and Error — Criminal Law — Evidence — Constitutional Law — Admissibility of Evidence.
    The Court of Appeals must determine whether evidence which a defendant alleges was erroneously admitted was decisive to the outcome of the case where the defendant raises, for the first time on appeal, a constitutional question regarding the propriety of the Search by which the evidence was obtained; the defendant may be allowed to raise the issue on appeal where the challenged evidence was totally decisive of the defendant’s conviction.
    3. Evidence — Relevancy — Trial Judge — Discretion — Appeal and Error.
    A trial judge has the discretion of ruling on the relevancy of evidence and a decision made in the exercise of that discretion should not be reversed unless it is clearly erroneous and indicates an abuse of discretion.
    4. Criminal Law — Breaking And Entering — Elements — Completed Offense.
    The elements of the crime of breaking and entering with intent to commit a felony ¿re 1) a breaking and entering of 2) an occupied dwelling with 3j felonious intent; the completed crime of breaking and entering with intent to commit a felony is shown when the above elements are established, regardless of whether there was a completed felony or even an attempt to complete a felony.
    5. Constitutional Law — Double Jeopardy — Breaking and Entering — First-Degree Criminal Sexual Conduct — Use of Force.
    A defendant may be convicted of both the crimes of breaking and entering an occupied dwelling with intent to commit the felony of criminal sexual conduct in the first degree and of first-degree criminal sexual conduct where sexual penetration is accomplished by use of force or coercion causing personal injury to the victim, arising out of one transaction, without there being any violation of the constitutional guarantees against double jeopardy because the two offenses are factually and legally independent of one another.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for the people.

      Hatchett, Dewalt, Hatchett, Mitchell & Morgan, for defendant on appeal.
    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.

   Per Curiam.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit criminal sexual conduct in the first degree contrary to MCL 750.110; MSA 28.305 and first-degree criminal sexual conduct where sexual penetration is accomplished by use of force or coercion causing personal injury to the victim contrary to MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). Defendant was sentenced to concurrent terms of 10 to 15 years and 15 to 25 years imprisonment, respectively, and is before this Court by leave granted.

Defendant raises three issues on appeal.

First, defendant claims that his warrantless arrest, shortly after the complainant reported the rape and breaking and entering, was without probable cause and that all evidence admitted at trial flowed from the illegal arrest and should have been suppressed. Review of the record reveals that no objection was made in the form of a motion to suppress evidence obtained as a result of an allegedly illegal arrest. Generally, error cannot be claimed unless the motion is timely made in the court below. People v Ferguson, 376 Mich 90; 135 NW2d 357 (1965), People v Blassingame, 59 Mich App 327, 332-333; 229 NW2d 438 (1975). However where a defendant "raises a constitutional question for the first time on appeal, the Court must determine if the allegedly erroneously admitted evidence was decisive to the outcome of the case”. People v Merchant, 86 Mich App 355, 358; 272 NW2d 656 (1978), People v Blassingame, supra. Before we determine whether the complained of evidence was decisive, i.e., its exclusion probably would have meant acquittal for the defendant, it is necessary to ask whether the evidence was erroneously admitted into evidence in the first instance. People v Summers, 70 Mich App 584, 586-587; 246 NW2d 152 (1976), People v Blassingame, supra. We find that it was not.

Review of the full record convinces us that the arresting officers were provided with sufficient probable cause to effect defendant’s warrantless arrest. The testimony of the arresting officers indicates that they had received reasonably trustworthy information from the complainant regarding her assailant’s height, build, hair, accent, and the clothes he wore. Furthermore, the officers had been advised that a neighbor had detected footprints in the snow from the victim’s home across the street to a house a short distance away where defendant was found. This information, combined with the officers’ initial interview with the defendant, is sufficient to warrant a prudent person in believing that the defendant had committed a felony offense. MCL 764.15(d); MSA 28.874(d), People v Robinson, 71 Mich App 287; 248 NW2d 237 (1976), People v Langston, 57 Mich App 666, 671-673; 226 NW2d 686 (1975). Since the warrantless arrest was valid, evidence seized incident to that arrest was properly obtained and, hence, admissible into evidence at the subsequent trial. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), People v Krontz, 50 Mich App 495; 213 NW2d 593 (1973).

Second, defendant claims that the trial court erred in admitting, over his objection on grounds of relevancy, the testimony of the complainant’s 13-year-old neighbor regarding his discovery of footprints in the snow which led from the complainant’s home to the house in which the defendant was found. Contrary to defendant’s assertion we hold that the evidence was both logically and legally relevant. People v Nichols, 341 Mich 311, 331; 67 NW2d 230 (1954), People v DerMartzex, 390 Mich 410, 415; 213 NW2d 97 (1973), MRE 401, 403.

The trial judge enjoys the discretion of ruling on the admissibility of evidence on the basis of relevancy. People v DerMartzex, supra, People v Utter, 217 Mich 74; 185 NW 830 (1921). That decision will not be reversed unless it is clearly erroneous and indicates an abuse of discretion: People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975). The trial judge determined that the jury could properly infer from the footprints the presence of the maker at the time of the criminal act. And although the prosecutor was unable to identify the footprints as being those of the defendant (2 Wigmore, Evidence [3d ed]) this factor was properly determined to be a matter of weight for the trier of fact, and not of law, People v Abdalla, 70 Mich App 697, 701; 247 NW2d 332 (1976), and see People v Keep, 123 Mich 231; 81 NW 1097 (1900), notwithstanding the nonexpertise of the witness regarding the identification or tracking of footprints. 3 Wharton’s Criminal Evidence (13th ed), § 610, p 179. As such, the trial court did not abuse its discretion in admitting the challenged testimony. People v Abdalla, supra, People v Keep, supra. See also, Anno: Footprints as evidence, 31 ALR 204, Anno: Footprints as evidence, 35 ALR2d 856, 29 Am Jur 2d, Evidence, § 377, p 427, 32 CJS, Evidence, § 546(9), (24), (59), 1 Wharton’s Criminal Evidence (13th ed), § 193, p 394.

Finally, defendant claims that his conviction for breaking and entering an occupied dwelling With intent to commit first-degree criminal sexual conduct is constitutionally prohibited because the double jeopardy clauses of the United States and Michigan constitutions forbid double punishment where the acts of breaking and entering and first-degree criminal sexual conduct arose out of the same transaction. In short, defendant contends that the prosecution proved, at best, that there was but a single intent by the complainant’s assailant, and that was to have sexual intercourse with the complainant. Since the breaking and entering was an essential element of the offense of the first-degree criminal sexual conduct, defendant contends that separate convictions violate the double jeopardy clause on authority of People v Swearington, 84 Mich App 372; 269 NW2d 467 (1978). We disagree.

In People v Swearington, supra, the defendant was convicted of breaking and entering with intent to commit larceny, contrary to MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, contrary to MCL 750.520b(l); MSA 28.788(2)(1). While it is not clear from the face of the opinion what aggravating circumstance resulted in bringing a charge of first-degree criminal sexual conduct against the defendant, as opposed to a charge of merely third-degree criminal sexual conduct MCL 750.520d; MSA 28.788(4), we have examined the record in Swearington and have determined that the defendant in that case had been charged with the offense of engaging

"in sexual penetration with another person, * * * under circumstances involving the commission of another felony, to wit: breaking and entering an occupied dwelling with intent to commit a larceny therein, contrary to MSA 28.788(2)(l)(c).”

Upon conviction of both the breaking and entering and the criminal sexual conduct charges, the defendant appealed to this Court which reversed the conviction for breaking and entering on the grounds that the breaking and entering was an essential element of the first-degree criminal sexual conduct conviction in violation of the double jeopardy clause of the Federal and state constitutions.

The instant case is clearly distinguishable from Swearington. In the case at bar, the defendant was charged with breaking and entering with intent to commit a felony, to wit: criminal sexual conduct in the first degree. The elements of that crime include (1) the breaking and entering of (2) an occupied dwelling with (3) felonious intent. People v Benevides, 71 Mich App 168; 247 NW2d 341 (1976), People v D’Argis, 44 Mich App 186; 205 NW2d 19 (1972). The record clearly reflects, and the defendant does not dispute, that each of these elements was properly established by the prosecution. As such, the criminal breaking and entering was completed regardless of whether the defendant was guilty of, or even attempted to complete, the felony (e.g. larceny, murder, arson, or criminal sexual conduct) which he allegedly intended to commit by his breaking and entering. People v Matuja, 77 Mich App 291; 258 NW2d 79 (1977).

In the case at bar the defendant was also charged with criminal sexual conduct in the first degree because he caused personal injury to the victim, and force or coercion was used to accomplish sexual penetration. MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). The basis of this first-degree criminal sexual conduct charge is materially different from the basis of the first-degree criminal sexual conduct charge in Swearington. That is, under the facts presented, the defendant was charged with criminal sexual conduct in the first degree because he used force and coercion to penetrate the complainant and because he caused her personal injury in so doing. Under the factual situation in the instant case, the defendant could have been charged with and convicted of first-degree criminal sexual conduct regardless of whether he committed another felony, e.g., breaking and entering with intent to commit a felony. In essence, defendant in the case at bar was charged and tried for acts which constituted two separate crimes, People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977). While the perpetration of the criminal act arose out of the same transaction for purposes of prosecution, conviction and sentencing, People v White, 390 Mich 245; 212 NW2d 222 (1973), the crimes share no common elements. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975).

In contrast, the defendant’s conviction of firSt-degree criminal sexual conduct in Swearington was based upon his guilt for breaking and entering. The trier of fact necessarily found him guilty of the latter oifense in order to convict him of the former. People v Anderson, 83 Mich App 744, 749; 269 NW2d 288 (1978). In essence, defendant’s criminal sexual conduct in Sweariiigton was punished as a first-degree criminal sexual conduct because sexual penetration occurred during the commission of another felony. As in cases where the trial court is required on the basis of double jeopardy to vacate the underlying felony where the defendant is convicted of first-degree murder under the felony-murder doctrine, MCL 750.316; MSA 28,548, so too, in Swearington, was this Court compelled to vacate the defendant’s breaking and entering conviction where it was used to convict the defendant of first-degree criminal sexual conduct under the "felony-rape” doctrine, MCL 750.520b(1)(c); MSA 28.788(2)(1)(c). Cf. People v Adnerson, supra. However, where defendant is convicted and punished for two distinct criminal acts, factually and legally independent of one another, the double jeopardy clause does not require that one of the convictions be vacated, despite the fact that they arose out of the same transaction.

Affirmed.


text:
    REID v A H ROBINS COMPANY
    Docket No. 78-2151.
    Submitted March 6, 1979, at Detroit.
    August 21, 1979.
    Larita and Matthew Reid, wife and husband, brought an action against A. H. Robins Company and others to recover for injuries allegedly caused by a Daikon Shield, an intrauterine contraceptive device, manufactured by defendant Robins. Plaintiffs moved for an order directing that a prior deposition taken in Kansas in another Daikon Shield case, by other attorneys and without notice to the parties, be admitted into evidence at trial. Wayne Circuit Court, Michael J. Hand, J., denied the motion on the grounds that since the deposition predated the effective date of the Michigan Rules of Evidence (MRE) it would not be admissible because the new rules of evidence are not retroactive. Plaintiffs appeal, by leave granted, the denial of their motion. The question on appeal is whether a deposition taken in another case in 1975 is inadmissible in this case solely because it was taken before the effective date of the MRE. Held:

    A March 1, 1978, amendment to the court rules provides that the MRE governs proceedings in Michigan Courts. Amendments to court rules operate only prospectively and cannot be retroactively applied in a manner which will affect action taken in a proceeding that has been closed. However, amendments to court rules do apply to all further proceedings on or after the effective date in the amendment. Therefore, the MRE is applicable to the present case and all other cases tried after March 1, 1978. The trial court was in error in excluding the proposed evidence solely because the deposition was taken before the effective date of the MRE.
    Remanded for further proceedings.
    1. Evidence — Rules of Evidence — Court Proceedings — Court Rules.
    Michigan Rules of Evidence govern proceedings in the courts of this state and are applicable to all court actions and proceedings (GCR 1963, 601).

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 6.

       20 Am Jur 2d, Courts § 85.

      2. Court Rules — Amendments — Prospective Application.
    Amendments to court rules operate only prospectively; this means that an amendment is not retroactively applied in a manner which will affect action taken in a proceeding which has been closed.
    3. Court Rules — Amendments — Effective Date.
    Amendments to court rules apply to all further proceedings on or after the effective date in the amendment.

      Weiner & Hauser, for plaintiffs.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy (by Ivin E. Kerr and Mark D. Heaphy), for A. H. Robins Company.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   Per Curiam.

Plaintiffs bring this appeal by leave granted to review the trial court’s pretrial ruling that a certain deposition would not be admissible in the pending trial of this action. Although the parties raise many arguments concerning the admissibility of this deposition, only one issue is properly before us at this time: whether a deposition taken in another case in 1975 is inadmissible in this case solely because it was taken before the effective date of the MRE. We answer in the negative and remand. If the matter goes to trial, the trial court shall determine whether the deposition is admissible Under the MRE.

Plaintiffs brought this suit to recover for injuries allegedly caused by the Daikon Shield, an intrauterine contraceptive device, manufactured by defendant A. H. Robins Company. Many other similar suits are pending or have been settled in various state and Federal courts. The deposition in question here was taken in two of those suits in the State of Kansas. Defendant A. H. Robins was represented at the deposition by attorneys other than those representing it in this case. No notice of the taking of this deposition was filed in this case even though the attorney for the Kansas plaintiffs was acting "of counsel” for plaintiffs Reid.

When plaintiffs moved for an order directing that this Kansas deposition be admissible in the trial of this cause, the trial court held that since it predated the effective date of the MRE it would not be admissible because the new rules of evidence are not retroactive. The trial court did not attempt to determine whether it would have been admissible under previous case law. We must decide only whether the MRE applied, not the admissibility of this particular bit of proposed evidence.

MRE 101 provides in part:

"These rules govern proceedings in the courts of this State to the extent * * * stated in rule 1101 * * *".

MRE 1101 provides in part:

"* * * these rules apply to all actions and proceedings in the courts of this state.”

The new MRE do not specifically deal with the present situation: evidence "created” before the effective date of the rules for use at a trial held after that date. However, GCR 1963, 601 provides:

"The rules of evidence governing proceedings in the Michigan courts are the Michigan rules of evidence (MRE).”

This amendment to the court rules became effective March 1, 1978. The problem may be analyzed as though it were an amendment to the court rule.

Robins correctly argues that amendments to court rules operate only prospectively. This means only that an amendment is not retroactively applied in a manner which will affect action taken in a proceeding which has been closed. Moore v Spangler, 401 Mich 360, 368; 258 NW2d 34 (1977) (amendment to GCR 1963, 701 allowing oral argument in appeals in circuit court does not apply to circuit court appeals processed before the effective date of the amendment), People v Kerridge, 20 Mich App 184; 173 NW2d 789 (1969) (action of court in determining defendant’s competency to stand trial was not to be measured by standards of court rule adopted after the trial court acted).

However, amendments to the rules do apply to all further proceedings on or after the effective date in the amendment. Jinkner v Widmer, 3 Mich App 155; 141 NW2d 692 (1966), Brashers v Jefferson, 70 Mich App 456; 245 NW2d 787 (1976), rev’d on other grounds, 402 Mich 399; 263 NW2d 243 (1978). Thus, the new rules of evidence will be applicable in this case and all other cases tried after March 1, 1978.

The trial court was in error in excluding the proposed evidence based solely on the effective date of the MRE. We have made no attempt to determine whether the evidence is otherwise admissible. This is a question for the court below to be decided when the evidence is offered.

Remanded for further proceedings. No costs.


text:
    DIXON v SYPE
    Docket No. 78-2746.
    Submitted June 5, 1979, at Detroit.
    Decided August 21, 1979.
    Plaintiff, Nora Dixon, was employed by the Gibraltar School District as a bus attendant. Defendant, Lela Sype, was also employed by the school district, as a bus driver. Plaintiff was injured when the bus she was riding in, which was driven by defendant, collided with an automobile. At the time of the accident, plaintiff and defendant had finished transporting children to school and were on their way to the bus yard to drop off the bus and get their personal vehicles. Plaintiff sued defendant in the Wayne Circuit Court, alleging negligence. The trial court, George T. Martin, J., granted accelerated judgment for defendant on the ground that the court lacked jurisdiction to decide whether plaintiff’s injury occurred in the course of her employment. Plaintiff appeals. Held:

    The issue of whether or not an injury occurred in the course of the injured’s employment is within the exclusive jurisdiction of the Workmen’s Compensation Bureau. Where the Workmen’s Compensation Bureau has not made any decision on the issue, a tort action for damages should not be dismissed by a court for lack of jurisdiction to decide the issue until the plaintiff is afforded an opportunity to seek a determination from the bureau.
    Reversed and remanded with instructions.
    1. Workmen’s Compensation — Exclusive Remedy — Statutes.
    Workmen’s compensation benefits are the exclusive remedy available to an employee against his employer where the employee’s injury is within the scope of the Worker’s Disability Compensation Act (MCL 418.131; MSA 17.237[131]).
    2. Workmen’s Compensation — Administrative Law — Exclusive Remedy — Pleadings — Jurisdiction.
    The mere omission of workmen’s compensation assertions from pleadings which would reveal the applicability of the exclusive remedy provision of the Worker’s Disability Compensation Act cannot confer jurisdiction on the courts.

      References for Points in Headnotes

       81 Am Jur 2d, Workman’s Compensation §§ 50, 51.

       81 Am Jur 2d, Workman’s Compensation § 40 et seq.

       82 Am Jur 2d, Workman’s Compensation § 476.

      3. Workmen’s Compensation — Administration — Exclusive Remedy — Torts — Courts — Administrative Agencies — Jurisdiction.
    The question of whether an employee’s injury occurred in the course of his employment and thus would subject him to the exclusive remedy provisions of the Worker’s Disability Compensation Act or whether an injury was not compensable under the compensation act, which would allow a tort action in circuit court, is for the Workmen’s Compensation Bureau.
    Gerald Tuchow Law Office (by Robert T. Beneñel), for plaintiff.

      Joselyn, Rowe, Jamieson & Grinnan, P.C. (by E. F. Mattingly), for defendant.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

Plaintiff, Nora Dixon, appeals as of right from the order of the Wayne County Circuit Court granting defendant’s motion for accelerated judgment on grounds that the court lacked jurisdiction to decide a key issue in the case: whether the injury to plaintiff was suffered in the course of her employment at the hands of a coemployee acting in the course of employment.

Plaintiff was injured on March 3, 1975, when a school bus in which she was riding collided with an automobile, throwing plaintiff to the floor of the bus. The bus was owned by the Gibraltar School District and was driven by defendant, Lela Sype, an employee of the school district. Plaintiff was also employed by the school district as a bus attendant, assigned to ride the bus with defendant and assist in loading and unloading handicapped children. At the time of the accident, plaintiff and defendant had finished transporting children to school and were on their way to the bus yard to drop off the bus and to get their personal automobiles.

Plaintiff brought this action in Wayne County Circuit Court, alleging that she was injured as a result of defendant’s negligence and seeking money damages as compensation for her injuries. Defendant answered, denying negligence and asserting as affirmative defenses, inter alia, that the action was barred by the provisions of the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq.; and by the no-fault automobile insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Thereafter, defendant filed a motion for accelerated judgment on grounds that plaintiff’s exclusive remedy was under the Worker’s Disability Compensation Act and that the circuit court lacked jurisdiction to hear the matter. The court in granting defendant’s motion noted that trial of the case would entail the determination of whether plaintiff’s injury occurred in the course of her employment, a question which, the court concluded, lies within the exclusive jurisdiction of the Workmen’s Compensation Bureau.

Section 131 of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), provides that "benefits as provided in this act shall be the employee’s exclusive remedy against the employer”. Section 827 of the act preserves the employee’s right of action against a tortfeasor "other than a natural person in the same employ or the employer”, MCL 418.827; MSA 17.237(827). These sections of the statute have been interpreted to bar an action by the injured employee against a fellow employee whose negligence caused the injury, where both were acting in the course of their employment at the time the injury occurred. See Herndon v UAW Local No 3, 56 Mich App 435; 224 NW2d 334 (1974), Wilson v Al-Huribi, 55 Mich App 95; 222 NW2d 49 (1974). Where either party was not acting in the course of employment, however, the statutory bar does not apply, see Herndon, supra, and Wilson, supra.

Section 841 of the act provides:

"Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau.” (Emphasis added.) MCL 418.841; MSA 17.237(841).

Interpreting the predecessor of the above-quoted section, this Court said in Herman v Theis, 10 Mich App 684, 689; 160 NW2d 365 (1968):

"Issues concerning injuries and whether they grew 'out of and in the course of the employment relationship’ are to be exclusively within the purview of the workmen’s compensation department, and the merits of such a claim are to be first evaluated by the department.”

The principle that jurisdiction over questions of the applicability of the 1969 act and exclusiveness of its remedy is vested in the Workmen’s Compensation Bureau has been clearly established in cases arising under the new act, Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976). Jurisdiction is not limited to claims for compensation or to controversies between employee and employer. See St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375; 230 NW2d 440 (1975), holding that the question whether an insurance policy issued by plaintiff covered an injury to defendant’s employee was for the bureau and not for circuit court to decide. See also Maglaughlin v Liberty Mutual Ins Co, 82 Mich App 708; 267 NW2d 160 (1978).

Plaintiff seeks to distinguish Herman v Theis, supra, on grounds that her action is not against her employer and that she did not allege an employer-employee relationship in her pleading. We note, however, that the exclusive remedies provision applies to actions against coemployees as well as employers, see Herndon v UAW Local No 3, supra, and Wilson v Al-Huribi, supra. As to the omission from the pleadings of the fact that plaintiff and defendant were fellow employees, we note that "[t]he mere omission of assertions from the pleadings which would reveal the applicability of the exclusive remedy provision cannot confer jurisdiction on the courts. St Paul Fire & Marine Insurance Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975).” Bednarski v General Motors Corp, 88 Mich App 482, 485; 276 NW2d 624 (1979).

Plaintiff cites several cases for the proposition that the employment status of an employee is a jury question. Only one of the cited cases, however, presents the issue now before us. In Bugg v Fairview Farms, Inc, 385 Mich 338; 189 NW2d 291 (1971), plaintiff’s decedent was killed in an automobile accident. Plaintiff filed both a workmen’s compensation claim and a wrongful death action against decedent’s employer and fellow employee. The workmen’s compensation claim was redeemed, the parties expressly reserving the question whether the death occurred in the course of employment for litigation in the wrongful death action. The Supreme Court reversed the trial court’s dismissal of the wrongful death action on the grounds that it was barred by the exclusive remedy provision, holding that defendants were estopped to raise the statutory bar by reason of their agreement to reserve the question whether the injuries occurred in the course of employment for litigation in the wrongful death action. We do not read this case as establishing that the issue stated may be presented to a jury as an alternative to a determination by the Workmen’s Compensation Bureau. To the extent that the Bugg case does so hold, we are of the opinion that its validity is questionable in light of the Supreme Court’s decision in Szydlowski v General Motors Corp, supra. The other cases cited by plaintiff deal with the question of whether an employment relationship exists, which has long been held to be a question within the power of the circuit court or a jury to decide, see Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979).

Bednarski, supra, presented an issue virtually identical to that raised in the case now before us. In Bednarski, plaintiff brought a wrongful death action against her late husband’s employer, alleging medical malpractice by the employer’s agents. Plaintiff also filed a claim for worker’s compensation benefits, alleging the same acts by the employer’s agents. The lower court granted summary judgment for defendant in the wrongful death action, on grounds that the action was barred by the exclusive remedy provisions of worker’s compensation. On appeal, this Court reversed and remanded to the circuit court, the matter to be held in abeyance pending a determination by the Workmen’s Compensation Bureau whether the injury complained of was compensable. If the bureau found the injury compensable, accelerated judgment for defendant would properly issue. If not compensable, the wrongful death action could proceed. Cf. Stimson v Michigan Bell Telephone Co, 77 Mich App 361; 258 NW2d 227 (1977).

We think a similar remedy is appropriate in the case before us. Accordingly, we reverse the circuit court’s order granting accelerated judgment for defendant and remand the matter to the circuit court. Plaintiff shall, within 20 days of the release date of this opinion, file with the Workmen’s Compensation Bureau an application for a hearing on the question in controversy. If such application is timely filed, the circuit court shall hold the instant action in abeyance pending the decision of the bureau. If the bureau determines that plaintiff’s injuries were suffered in the course of her employment, or if plaintiff fails to apply for a bureau determination within 20 days, the court shall grant accelerated judgment for defendant. If the bureau finds the injuries not to be work-related, this action may proceed.

Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction.

       Plaintiff alleges in her brief that she filed a claim for worker’s compensation benefits for injuries suffered in the accident, which claim has been redeemed.

       The Bednarski court recognized that actions by an employee for injuries not arising out of the employment relationship are not barred by the Worker’s Disability Compensation Act, citing Panagos v North Detroit General Hospital, 35 Mich App 554; 192 NW2d 542 (1971).

       Seeking to distinguish Herman v Theis, cited in text, supra, plaintiff argues that she is precluded from seeking a determination by the bureau of the issue in question, because she has redeemed her claim for worker’s compensation, whereas in Herman, supra, the claim was still pending. We note that a similar distinction could be made with regard to Bednarski, cited in text, supra. However, we find nothing in the Worker’s Disability Compensation Act of 1969 which specifically bars determination by the bureau of questions relating to redeemed claims, and conclude that §§ 841 and 847 of the act are sufficiently broad to permit such determination.


text:
    WASHINGTON v TRAVELERS INSURANCE COMPANY
    Docket No. 78-2967.
    Submitted June 6, 1979, at Detroit.
    Decided August 21, 1979.
    Dale Washington, while driving his own uninsured automobile, was struck by another uninsured motorist. Washington resided with his sister, who owned an automobile insured by Travelers Insurance Company. He filed a claim for benefits and Travelers denied coverage. Washington then brought an action against Travelers, seeking a declaratory judgment that Travelers was liable. An amended complaint added as a defendant the Secretary of State, as director of the Motor Vehicle Accident Claims Fund, and asserted a claim against the fund if Travelers were found not liable. The Wayne Circuit Court, Horace W. Gilmore, J., granted summary judgment in favor of the plaintiff against Travelers. Travelers appeals. Held:

    The statute in effect at the time of the accident required that uninsured motorist coverage must be offered to whoever is insured under the liability provision of the policy. Plaintiff’s assertion that his sister’s policy invalidly excludes him from uninsured motorist coverage because he owns his own automobile is without merit, because, under the terms of the policy, the plaintiff is not an insured under the liability section of the policy.
    Reversed.
    Insurance — Automobiles — Uninsured Motorists — Statutes.
    The former uninsured motorist insurance statute required that the offer of uninsured motorist coverage was to apply to whoever is insured under the liability coverage of the policy; a policy which limited uninsured motorist coverage to the named insured and to any relative who is a resident of the same household so long as neither that relative nor his spouse owned an automobile, did not violate the statute in the case of a claimant who owned his own automobile and who resided with his sister, the named insured, where under the terms of the policy the claimant was not insured under the liability provision of the policy (MCL 500.3010; MSA 24.13010, repealed by 1972 PA 345).

      References for Points in Headnote
    7 Am Jur 2d, Automobile Insurance §§ 135, 136.
    Who is "named insured” within meaning of automobile insurance. 91 ALR3d 1280.

      Sommers, Schwartz, Silver & Schwartz, P.C. (by Frank Mafrice), for plaintiff.

      Nazar Berry (by Taras P. Jarema), for Travelers Insurance Company.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Edgar L. Church, Jr., Assistants Attorney General, for the Secretary of State.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore, JJ.

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

   Per Curiam.

Defendant Travelers Insurance Company appeals from an order of the Wayne County Circuit Court invalidating a portion of an insurance policy issued by Travelers and granting summary judgment in favor of plaintiff Dale Washington.

On September 8, 1973, plaintiff Dale Washington, while driving his own uninsured automobile, was struck by another vehicle owned and operated by an uninsured motorist. At the time of the accident, plaintiff resided in the same household as his sister, Sandra Washington, who owned an automobile which was insured by defendant Travelers. Plaintiff filed a claim for benefits under the uninsured motorist provision of his sister’s policy. Travelers denied coverage, and plaintiff brought this action for declaratory judgment. Plaintiff subsequently filed an amended complaint adding the Secretary of State, as director of the Motor Vehicle Accident Claims Fund, as a defendant and asserting a claim against the fund if Travelers should be found not liable. After further proceedings not relevant to this appeal, plaintiff moved for and was granted summary judgment.

Plaintiff argued successfully in the trial court that the provision of defendant Travelers’ policy which purports to deny him coverage is an exclusion which is void as against public policy. The policy in question provides uninsured motorist coverage for, inter alia, "the named insured and any relative”. Relative is defined as "a relative of the named insured who is a resident of the same household, provided neither he nor his spouse owns a private passenger automobile”.

Plaintiff argues that the exclusion of relatives of the named insured who, like plaintiff, own passenger cars narrows the coverage of the uninsured motorist provision of the policy, in violation of the policy expressed most recently in Pappas v Central National Insurance Group of Omaha, 400 Mich 475; 255 NW2d 629 (1977). The Supreme Court in Pappas, interpreting MCL 500.3010; MSA 24.13010, said:

"[T]he Legislature has prescribed the class of persons to which uninsured motorist coverage must apply. It must be provided for the protection of persons 'insured thereunder’, that is, persons insured under the liability coverage portion of the policy. Nowhere does the Legislature attempt to fix a part of the class covered by the liability policy as the minimum number of persons to be covered. The statute is clear in requiring that the offer of coverage apply to whomever is insured under the liability coverage of the policy.” Pappas, supra, at 480.

We agree with plaintiff that uninsured motorist coverage may not be narrower than liability coverage in any policy subject to the requirements of MCL 500.3010. The difficulty with plaintiff’s argument that the definition of "relative” quoted supra constitutes such a provision is, as defendant Travelers points out, that plaintiff is not insured under the liability provision of the policy. Liability coverage is limited to the named insured (defined to include her spouse if resident in the same household) and persons using the owned automobile of the named insured with her permission. It is not disputed that plaintiff was not the named insured or her spouse, nor was he driving the named insured’s automobile.

Unlike the policy in Pappas, supra, the policy in the instant case does not provide liability coverage which is broader than the uninsured motorist coverage. Indeed, the uninsured motorist coverage is somewhat broader than the liability coverage, for relatives domiciled in the same household as the named insured (provided neither the relative nor his spouse owns a car) are provided uninsured motorist coverage, while they are not provided liability coverage. Plaintiff’s argument seems to be that, having extended uninsured motorist coverage to some relatives domiciled in the same household, Travelers must extend coverage to all relatives domiciled in the same household, despite the fact that none of the aforementioned persons is even arguably included in the policy’s liability coverage. We know of no rule of law which requires such a result.

We therefore disagree with the trial court’s finding that under the circumstances here presented the exclusion of relatives owning automobiles from uninsured motorist coverage violates public policy.

Reversed. No costs.

       This cause of action arose prior to the effective date of the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq., and the repeal effective the same date of the statutory section requiring uninsured motorist coverage, MCL 500.3010; MSA 24.13010.

        Cf. Hickman v Community Service Ins Co, 78 Mich App 1; 259 NW2d 367 (1977), Bradley v Mid-Century Ins Co, 78 Mich App 67; 259 NW2d 378 (1977), Ellis v State Farm Ins Co, 78 Mich App 189; 259 NW2d 421 (1977). Leave has been granted in all three cases, 402 Mich 950r (1978).

       The policy also covers persons vicariously liable for acts or omissions of the named insured or a person using her automobile.


text:
    PEOPLE v KINCAID
    Docket No. 78-427.
    Submitted May 16, 1979, at Detroit.
    Decided July 12, 1979.
    Defendant, Cedell Kincaid, was charged in Recorder’s Court of Detroit with possession of heroin with intent to deliver. Defendant moved to suppress certain evidence and quash the information. A hearing was held before Donald Neitzel, J., where it was disclosed that a search of the trunk of defendant’s car occurred after officers watched defendant apparently pass white coin envelopes, which at least one officer knew were commonly used for heroin, to other people in exchange for money and after the officers approached defendant, identified themselves and saw defendant throw some envelopes into the trunk of his car and slam the lid. The court suppressed the evidence and quashed the information. The people appeal. Held:

    The search was valid and the evidence should not have been suppressed.
    Reversed and remanded.
    Searches and Seizures — Probable Cause.
    A police officer who knew that coin envelopes were commonly used to contain heroin had probable cause to search the trunk of a defendant’s automobile where the officer had witnessed the defendant pass coin envelopes to other people in exchange for money and where, after the officers identified themselves, the defendant threw some envelopes into the trunk of his car and slammed the lid; evidence obtained in the search is admissible.
    References for Points in Headnote
    68 Am Jur 2d, Searches and Seizure § 45.
    Validity, under Federal Constitution, of warrantless search of automobile—Supreme Court cases. 26 L Ed 2d 893.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baugh

      man, Assistant Prosecuting Attorney, for the people.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   Per Curiam.

Defendant was charged with possession with intent to deliver heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Defendant’s motion to suppress the evidence and quash the information was granted on December 13, 1977, and the plaintiff appeals by right.

The sole issue on appeal is whether or not the police officers had probable cause to search the trunk of defendant’s automobile. The search occurred (1) after the officers watched defendant apparently pass white coin envelopes, which at least one officer knew were commonly used for heroin, to other people in exchange for money, and (2) after the officers approached defendant, identified themselves and saw defendant throw some envelopes into the trunk of his car and slam the trunk. The subsequent warrantless search of the trunk yielded coin envelopes containing heroin. We conclude that the search was valid and, therefore, that the trial judge was clearly erroneous in suppressing the evidence and quashing the information.

Contrary to the trial judge’s determination, People v Falconer, 76 Mich App 367; 256 NW2d 597 (1977), is not the factual twin of the instant case. In Falconer, there was no testimony regarding the arresting officer’s prior experience with coin envelopes and no furtive gesture by the defendant upon the approach of the police officer. These additional factors bring our case within the reasoning of People v Hall, 40 Mich App 329; 198 NW2d 762 (1972). See also People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977). The officer’s prior experience with coin envelopes and the defendant’s furtive gesture supplied the officers with sufficient probable cause to make the search.

Reversed and remanded for further proceedings.


text:
    EMERSON v ARNOLD (ON REMAND)
    Docket No. 23428.
    Submitted February 8, 1977, at Lansing.
    Decided March 23, 1977.
    Plaintiff, William H. Emerson, and defendant’s decedent, Warren J. Emerson, were brothers engaged in two business partnerships involving two basically identical buy-sell agreements for the express intention of avoiding "a discontinuance of the business of the firm[s]” and assuring each partner that "his respective estate will receive the full value for his interest”. The agreements established an initial valuation for each partnership interest and provided for the purchase of life insurance policies on each other’s life to supply purchase funds. The agreements recited that the stipulated valuations would remain in effect "unless and until” different valuations were established "provided, however, that as soon as practicable after July 1st and January 1st of each year hereafter, said partners shall reaffirm the valuation last made or establish a new value for said respective partnership interests”. The brothers never reaffirmed or reevaluated the partnership interests. Plaintiff’s brother died and plaintiff tendered the proceeds of the insurance contracts on his brother’s life to defendant, Raymond V. Arnold, executor of his brother’s estate. Defendant refused to convey decedent’s interest in the partnership. Plaintiff sued defendant in the Jackson Circuit Court for conveyance of the interests and testified that whenever the brothers felt their respective interests in the partnerships exceeded the insurance coverage they simply bought more insurance. Defendant counterclaimed alleging plaintiff had not paid the full value of decedent’s interest. The court, Russell E. Noble, J., granted summary judgment for plaintiff, finding that the appropriate means of determining the value of decedent’s interest had been utilized, that the conditions for the transfer of decedent’s interest to plaintiff were satisfied and that there was no ambiguity in the agreements or the partners’ subsequent conduct sufficient to raise a question of fact. Defendant appeals. The Court of Appeals, in an order of October 30, 1975, granted the plaintiff’s motion to affirm the summary judgment. The defendant then sought leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court vacated the summary order of affirmance of the Court of Appeals and remanded the case to the Court of Appeals for plenary consideration. 397 Mich 821 (1976). Held:

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 853.
    73 Am Jur 2d, Summary Judgment § 40.

       17 Am Jur 2d, Contracts § 355.

       28 Am Jur 2d, Estoppel and Waiver § 174.

      The mandatory language of the agreements with regard to reaffirmation or reevaluation coupled with the failure to mention what effect, if any, failure to comply was to have creates an uncertainty due to incompleteness for the jury to decide.
    Reversed and remanded.
    1. Judgment — Summary Judgment — Benefit of Doubt — Genuine Issue of Fact — Court Rules.
    A summary judgment granted for the reason that there is no genuine issue as to any material fact will be upheld on appeal where, giving the opposing party the benefit of every reasonable doubt, there is no genuine issue as to any material fact (GCR 1963, 117.2[3]).
    2. Contracts — Construction of Contracts — Incompleteness — Jury Question.
    It is for a jury to determine the true nature of an agreement where there is uncertainty because of incompleteness.
    3. Contracts — Waiver — Question of Law and Fact.
    Waiver is a mixed question of law and fact; it is the duty of the court to charge and define the law applicable to waiver, but it is the province of the jury to say whether the facts of the particular case constitute waiver as defined by the court.

      Rosenburg, Painter, Stanton, Bullen & Nelson, P.C. (by Philip M. Moilanen), for plaintiff.

      Edward L. Cobb, P.C., for defendant.
    Before: D. E. Holbrook, P.J., and R. B. Burns and M. F. Cavanagh, JJ.
   On Remand

Per Curiam.

The defendant estate appeals from the circuit court’s grant of plaintiff’s motion for summary judgment and from the corresponding dismissal of defendant’s counterclaim.

Plaintiff and defendant’s decedent were brothers. In 1956 they entered into two separate partnership agreements, respectively involving a printing company and a small grocery store. Through their attorney, the brothers established two, basically identical buy-sell agreements to provide for disposition of the assets of these partnerships upon the death of either brother. Their express intention was to avoid "a discontinuance of the business of the firm[s]”, and to assure each partner that "his respective estate will receive the full value for his interest”.

The agreements establish an initial valuation for each brother’s share of $25,000 in the printing business and $20,000 in the grocery store. These sums were to be guaranteed by the proceeds from life insurance policies purchased by each brother on the other’s life.

The agreements further recited that the stipulated valuations would remain in effect "unless and until” different valuations were established, "provided, however, that as soon as practicable after July 1st and January 1st of each year hereafter, said partners shall reaffirm the valuation last made or establish a new value for said respective partnership interests”.

The brothers never reaffirmed or revalued the interests despite the fact that the attorney who drafted the agreements provided them with prepared forms for that purpose. According to plaintiff, the surviving partner, whenever the brothers felt that their respective interests in the partnerships exceeded the insurance coverage they simply bought more insurance. At the time of decedent’s death, September 10, 1968, the partnerships’ insuranee proceeds on his life totalled $59,665.20.

As provided in the agreements, plaintiff paid this amount to decedent’s executor (the same attorney who had drafted the agreements). Defendant, however, refused to convey decedent’s interest in the two partnerships as required by the agreements, alleging that plaintiff had not paid the full value of decedent’s interest. Defendant counterclaimed that the original valuations had expired and that defendant was entitled to one-half of the fair market value of the businesses as of the date of decedent’s death. Defendant thus sought $96,000 in addition to the $59,665.20 in insurance benefits previously tendered.

Plaintiff filed a motion for summary judgment. The trial court found that the appropriate means of determining the value of decedent’s interests had been utilized, and that the conditions for the transfer of decedent’s interests to plaintiff were satisfied. The trial court found no ambiguity in the agreements or in the partners’ subsequent conduct sufficient to raise a disputed question of fact. The court concluded that plaintiff had fully performed and was entitled to the relief he sought. Defendant has appealed.

It is settled that "[f]or a summary judgment granted under GCR 1963, 117.2(3) to be upheld on appeal, it must be clear that, giving the opposing party the benefit of every reasonable doubt, there is no genuine issue as to any material fact”. Wynglass v Prudential Life Ins Co of America, 68 Mich App 514, 516; 242 NW2d 824 (1976). Applying this rigorous standard, we respectfully disagree with the opinion of the trial court.

The mandatory language of the agreements that the partners "shall” reaffirm or revalue their interests manifests their apparent intent to keep the values current. While the agreements are explicit as to what steps had to be taken to make a new valuation effective, they do not mention what effect, if any, the partners’ failure to comply with this seemingly mandatory provision was to have on the values initially established. Where there is uncertainty in an agreement because of incompleteness, it is for a jury to determine the true nature of the agreement. Anderson v Brown, 21 Mich App 699; 176 NW2d 457 (1970).

Although it might be argued that the partners waived the reaffirmation or revaluation provisions by their failure to comply with them and/or by their subsequent purchase of more insurance, it is likewise the duty of a properly instructed jury to say whether such a waiver occurred. Cascade Electric Co v Rice, 70 Mich App 420, 424-426; 245 NW2d 774 (1976).

Giving every reasonable doubt to defendant, it cannot be said that this case presents no genuine issue as to any material fact.

Reversed and remanded for trial. Costs to plaintiff.


text:
    GUSLER v FAIRVIEW TUBULAR PRODUCTS
    Docket No. 43105.
    Submitted June 6, 1979, at Grand Rapids.
    Decided July 17, 1979.
    Karen V. Gusler was injured in the course of her employment at Fairview Tubular Products and received workmen’s compensation benefits in the amount of $64 per week from Farm Bureau Insurance Group, the workmen’s compensation insurer for Fairview. Gusler petitioned the Workers’ Disability Compensation Bureau for a review of her benefits, and an administrative law judge determined that she should receive $96 per week, the statutory minimum for an injured employee with two dependents. The Worker’s Compensation Appeal Board affirmed the higher rate of compensation and Fairview and Farm Bureau appeal by leave granted. Held:

    Minimum rates of compensation under the Worker’s Disability Compensation Act are adjustable in accordance with the increase or decrease in the average weekly wage in the covered employment as determined by the Employment Security Commission and the adjustment of Gusler’s compensation to accord with the current minimum rate was proper.
    Affirmed.
    Workmen’s Compensation — Rate of Compensation — Minimum Compensation — Statutes.
    Minimum, as well as maximum, rates of compensation established by the Worker’s Disability Compensation Act are adjustable once each year in accordance with the increase or decrease in the average weekly wage in the covered employment as determined by the Employment Security Commission (MCL 418.355; MSA 17.237[355]).
    References for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation §§ 368, 369.
    Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death. 12 ALR2d 611.

      Rensberry & Foster, P.C., for plaintiff.

      Davidson, Breen & Doud, P.C., for defendants.

      Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and B. D. Burdick, JJ.

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

   Per Curiam.

Defendants appeal by leave granted a determination of the Workmen’s Compensation Appeal Board awarding plaintiff $96 weekly in benefits pursuant to the provisions of MCL 418.355; MSA 17.237(355). Working fulltime plaintiff had an average gross earning of $96 per week prior to her work-related disability.

On appeal defendants contend they are only liable to plaintiff to the extent of $64 per week or two-thirds of plaintiff’s wage loss, which is the amount they had been paying.

Defendants take exception to this Court’s decision in Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), lv den 391 Mich 780 (1974), and ask us to repudiate same.

The above we decline to do. Defendants’ remedy, if any, lies with the Legislature and not this Court.

Affirmed. No costs, interpretation of a statute being involved.


text:
    PEOPLE v BECKNER
    Docket No. 78-3248.
    Submitted June 6, 1979, at Lansing.
    Decided July 26, 1979.
    Debra D. Beckner was convicted, on her plea of guilty, of uttering and publishing, Monroe Circuit Court, James J. Kelley, Jr., J. The defendant appeals, alleging that she should have been charged under the statute which gives specific reference to the uttering and publishing of instruments issued by the state or its political subdivisions rather than under the general statute on uttering and publishing. Held:

    1. In this case the check was issued by Monroe County. Thus the acts charged against the defendant fall squarely within the more specific statutory provision. The defendant was improperly charged under the general statute.
    2. The defendant’s claim is not waived by her guilty plea since a guilty plea does not waive a defendant’s right to assert that the state never had the power to proceed against her in the first place.
    Reversed and remanded.
    Criminal Law — Uttering and Publishing — State Instruments — Statutes.
    A statute which specifically prohibits the uttering and publishing of instruments issued by the state or its political subdivisions has the effect of removing the alteration of an instrument issued by the state or one of its subdivisions from the coverage of the general statute on uttering and publishing and a conviction under the general statute for the uttering and publishing of an instrument issued by the state or one of its subdivisions is invalid (MCL 750.249, 750.253; MSA 28.446, 28.450).
    Reference for Points in Headnote
    20 Am Jur 2d, Counterfeiting §§ 4, 5.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Dale Lockwood, Assistant Prosecuting Attorney, for the people.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and 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.

   Per Curiam.

Debra Darlene Beckner was charged with uttering and publishing, contrary to MCL 750.249; MSA 28.446. The complaint alleged that the instrument involved was a check in the amount of $128; that the drawer was Monroe County Social Services; that the drawee was Monroe Bank & Trust; that the payees were the defendant and Winston Scheer and that the instrument was endorsed "Debra Beckner” and "Winston Scheer”.

On July 29, 1977, the defendant pled guilty to the charge, telling the trial court that Winston Scheer was her landlord and that the check was intended to assist her in paying her rent. She stated that she obtained the check from the drawer by delivery at the drawer’s office, endorsed it and signed the name of Scheer without his consent and obtained payment of the instrument, presumably upon presentment at the drawee bank.

The trial court imposed a sentence of 5 to 14 years imprisonment; the defendant appeals as of right.

The statute under which the defendant was charged is MCL 750.249; MSA 28.446, which provides:

"Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years.”

MCL 750.253; MSA 28.450 states:

"Any person who shall utter or pass, or tender in payment as true, any such false, altered, forged or counterfeit note, certificate or bill of credit for any debt of this state, or any of its political subdivisions or municipalities, any bank bill or promissory note, payable to the bearer thereof, or to the order of any person, issued as foresaid, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment of not more than 5 years or by fine of not more than 2,500 dollars.”

The defendant claims that she should have been charged under the latter more specific statute. We agree.

In People v Hall, 391 Mich 175; 215 NW2d 166 (1974), a defendant accused of having altered a state treasurer’s warrant issued to him for his wages was tried and convicted under the "common utterer” statute, § 249. The Supreme Court reasoned that the specific reference in § 253 to instruments issued by the state or its political subdivisions had the effect of removing the alteration of an instrument issued by the state or its subdvisions from the coverage of § 249, and held that the conviction under that section was invalid.

This Court reached a similar result in a case involving the uttering and publishing of an ADC "check” issued by the state in People v Shears, 84 Mich App 175; 269 NW2d 519 (1978).

The prosecution urges that Hall, supra, be restricted to apply only to warrants drawn upon the state treasurer. There is no foundation for this argument. We note that the statutes addressing the forgery and uttering and publishing of public instruments refer not to instruments drawn on public entities but to instruments issued by the state or its political subdivisions. In this case, by the terms of the complaint, the check was issued by Monroe County. Thus, the acts charged against the defendant fall squarely within the more specific statutory provisions. See People v Shears, supra.

The prosecution also asserts that the defendant’s claim is waived by her guilty plea. Entry of a guilty plea does not waive the defendant’s right to assert that the state never had the power to proceed against her in the first place. That is the case when the charge is brought under an inapplicable statute. See People v Alvin Johnson, 396 Mich 424, 439-444; 240 NW2d 729 (1976), Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974), People v Parney, 74 Mich App 173; 253 NW2d 698 (1977).

Reversed and remanded.


text:
    ZAMFIR v ZAMFIR
    Docket No. 78-2644.
    Submitted May 16, 1979, at Detroit.
    Decided September 4, 1979.
    Plaintiff, Monique M. Zamfir, was divorced from her husband, defendant Alexandre Zamfir, in 1974. The divorce decree also divided the property of the parties. In 1976, plaintiff petitioned to modify the divorce judgment, alleging the existence of bank accounts not known to her in 1974. The bank accounts had contained almost $32,000 which defendant had converted to traveler’s checks, contrary to an injunctive order of the court. Defendant proceeded to squander all but about $10,000 of the money. Plaintiff sought $15,869.49 (one-half of the concealed amount) plus interest and attorney fees required to discover the assets and represent plaintiff on the petition. The Oakland Circuit Court, John N. O’Brien, J., awarded a total monetary benefit to plaintiff of $5,000 plus $2500 in attorney fees. Plaintiff appeals. Held:

    The trial court has wide discretion in a divorce case in dividing the property of the marital estate, and a property award will not be modified by the Court of Appeals unless it is convinced that, had it been in the position of the trial court, it would have reached a different result. The Court felt it would have reached a different result in this case and ordered a change in the division of property.
    Reversed and remanded.
    1. Divorce — Appeal and Error — Division op Property — Record on Appeal.
    The record on appeal in a suit for divorce should affirmatively and clearly disclose that a different adjustment of property rights should have been made in order to justify the Court of Appeals in disturbing a trial court’s judgment as to what disposition should be made.
    References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 135.
    5 Am Jur 2d, Appeal and Error § 868.

      2. Divorce — Property Division — Appeal and Error — Judge’s Discretion.
    The trial court has wide discretion in a divorce case in dividing the property of the marital estate, and a property award will not be modified by the Court of Appeals unless it is convinced that, had it been in the position of the trial court, it would have reached a different result.

      William H. Dance, for plaintiff.

      Ralph Musilli, for defendant.
    Before: N. J. Kaufman, P.J., and Allen, and K. B. Glaser, Jr., JJ.

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

   Per Curiam.

These parties were married October 5, 1957, and divorced October 20, 1974. Plaintiff received custody of the two minor children. The property settlement divided the known assets approximately equally. The plaintiff retained the marital home for the benefit of the children. When plaintiff remarries or vacates the home or the last minor child becomes 18 the home is to be sold. After deductions of expenses of the sale, plaintiff’s principal payments on the mortgage since the divorce and a $2,000 credit to defendant, the proceeds are to be divided equally.

On February 24, 1974, a preliminary injunction was entered in the pending divorce, requiring defendant to "desist and refrain from * * * selling, assigning, encumbering or otherwise disposing of any of the * * * personal properties of the parties hereto and more especially * * * the bank accounts of either or both of the parties hereto, except as needed for the ordinary course of living”. Defendant had two bank accounts that plaintiff did not know about, totalling $31,738.97. They were in defendant’s name "in trust” for the children. After being served with the injunction, defendant withdrew these funds, and converted them to traveler’s checks. Defendant gave false answers to interrogatories regarding his bank accounts and a false statement to the trial judge as to "assets”, which contributed to the concealment of the accounts. It is not entirely clear whether these false statements were deliberate or not.

On April 26, 1976, plaintiff, having discovered the existence of the accounts, filed a petition to modify the divorce judgment. At the time of hearing, defendant claimed to have $10,000 of the traveler’s checks remaining. The remainder he had spent on "slow horses and fast women”, to quote his appellate counsel. The trial court awarded plaintiff an additional $3,000 from defendant’s share of the home and cancelled defendant’s $2,000 credit on sale of the home. The trial judge also awarded $2,500 cash to be paid plaintiff forthwith and $2,500 as attorney fees to plaintiffs attorney to be paid forthwith. Plaintiff appeals from this order, contending she should have received one-half of the concealed amount ($15,869.49) plus interest and attorney fees required to discover the assets and represent plaintiff on the petition. We agree.

The property settlement provisions of the judgment are generally not subject to modification without proof of fraud. Pierson v Pierson, 351 Mich 637, 645; 88 NW2d 500 (1958). In this case defendant does not deny fraud, and indeed on this record he could hardly do so. Hearings on such petitions are equitable in nature and are reviewed de novo, Eigner v Eigner, 79 Mich App 189, 201; 261 NW2d 254 (1977), and it is our duty to weigh the evidence and reach an independent conclusion, Jaikins v Jaikins, 370 Mich 488, 490; 122 NW2d 673 (1963). The Court also recognizes the wide discretion in the trial court in division of property, and that that division need not be equal, Abadi v Abadi, 78 Mich App 73, 79; 259 NW2d 244 (1977), and that the record brought here should affirmatively and clearly disclose that a different adjustment of property rights is in order before we undertake a new judgment, Crooks v Crooks, 345 Mich 713, 719; 76 NW2d 843 (1956).

However, we find that the record in this case does affirmatively and clearly disclose facts requiring a different division of the concealed bank accounts. We are convinced we would have reached a different result than the trial court. The plaintiffs claim of half the fraudulently concealed assets, under the circumstances of this case, is not only fair, it is generous. In such cases we must revise the trial court’s determination. Simmons v Simmons, 58 Mich App 480; 228 NW2d 432 (1975). Under these circumstances equity dictates that the plaintiff should recover at least one-half of the fraudulently concealed assets plus interest and the costs of recovery.

The trial court apparently considered only the $10,000 defendant claimed he still had and granted plaintiff considerably less than the $15,869.40 principal which plaintiff was entitled to. In addition, had defendant abided by the injunctive order and disclosed the existence of the funds as he should have, interest would have accumulated to the date of judgment and from that time on. Furthermore, plaintiff would have been paid in dollars unaffected by the inflation of the last five years. It would be unconscionable for a court of equity to permit defendant to retain these profits of his wrongdoing or, at least, to deprive plaintiff of the property to which she was entitled.

Accordingly, the order modifying the original property settlement is vacated in its entirety. The cause is remanded for entry of an order modifying the original property settlement in the following particulars. (1) The plaintiff shall be granted the sum of $2,500 for attorney fees incurred in pursuing the order of modification. This amount shall be payable forthwith. (2) The plaintiff shall be granted an additional $15,869.49 together with interest at six percent per annum (on the entire sum or any unpaid balance thereof) to be computed from February 24, 1974. This amount shall also be payable forthwith. The plaintiff shall have a lien on the defendant’s interest in the home for both sums.

The defendant shall receive a credit against his liability to the plaintiff for any amount he has paid and the plaintiff or her attorney has retained in consequence of the order of modification from which this appeal is brought.

Costs to plaintiff.