author: MacKenzie, J.

text:
    WAYNE COUNTY PROSECUTOR v RECORDER’S COURT JUDGE (PEOPLE v MEEKS)
    Docket No. 78-1721.
    Submitted January 16, 1979, at
    September 19, 1979.
    Harvey Meeks was convicted of four counts of felonious assault and one count of possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, Justin C. Ravitz, J. Prior to the conviction in Recorder’s Court, the defendant had entered a plea of guilty in the City of Warren District Court to a charge of "conspiracy to commit a misdemeanor, to wit: reckless use of a firearm”, arising out of the same incident as did the charges for which he was convicted in Recorder’s Court. At the time that the guilty plea was entered to the charge in Warren, Meeks knew that charges against him were pending in Wayne County.
    As a result of the conviction in Recorder’s Court of Detroit, Meeks was sentenced to 2 1/2 years probation on all five convictions, the trial judge declining to impose the mandatory two-year sentence of the felony-firearm statute.
    The Wayne County Prosecuting Attorney brought an original action in the Court of Appeals against the Recorder’s Court Judge seeking superintending control compelling the judge to impose the mandatory two-year term of imprisonment for the felony-firearm conviction. The Court of Appeals denied Meeks’ motion to intervene in the superintending control action. Subsequently, the Supreme Court directed the Court of Appeals to permit Meeks to intervene, 406 Mich 851 (1979).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 611.

       21 Am Jur 2d, Criminal Law § 610.
    Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment. 33 ALR3d 335.

       21 Am Jur 2d, Criminal Law §§ 188, 189.

       21 Am Jur 2d, Criminal Law § 479.
    Appealability of order sustaining demurrer, or its equivalent, to complaint on ground of misjoinder of parties or misjoinder of causes of action. 56 ALR2d 1238.

       21 Am Jur 2d, Criminal Law § 476.

       21 Am Jur 2d, Criminal Law § 14.

       73 Am Jur 2d, Statutes §§ 137-141.

      The issues to be considered are 1) whether imposition of the mandatory penalty under the felony-firearm statute constitutes cruel or unusual punishment in the instant case, 2) whether conviction of both felonious assault and possession of a firearm during the commission of a felony constitutes a violation of double jeopardy, 3) whether the convictions in both Detroit Recorder’s Court and the City of Warren District Court, arising out of the same transaction or occurrence, constitute a double jeopardy violation, 4) whether the mandatory sentencing provision of the felony-firearm statute violates the separation of powers clause of the Michigan Constitution, and 5) whether the felony-firearm statute violates a Michigan constitutional provision because it attempts to amend or alter existing law by implication. Held:

    1. The felony-firearm statute passes the three tests established by the Michigan Supreme Court for determining whether a given punishment constitutes cruel or unusual punishment. The punishment mandated by the felony-firearm statute does not violate the constitutional prohibition against cruel or unusual punishment.
    2. The conviction of both felonious assault and possession of a firearm during the commission of a felony, arising out of the single incident, does not constitute a violation of double jeopardy.
    3. To satisfy the constraints of the double jeopardy provisions a prosecutor must, except in limited circumstances, join at one trial all charges against a defendant arising out of a single criminal act. However, a defendant may waive the right to a single trial on more than one criminal charge where he has pled guilty to one or more of the charges with an awareness that the prosecutor plans to proceed to trial on the other charge or charges, Meeks pled guilty to the Warren charge while aware of the pending charges in Detroit Recorder’s Court. As a result, he has waived any double jeopardy protection.
    4. The Legislature is free to retain or delegate sentencing discretion when defining offenses and setting punishment. The mandatory sentencing provision of the felony-firearm statute does not violate the separation of powers clause of the Michigan Constitution,
    5. Not all amendment by implication is prohibited by the Michigan Constitution. If an act is complete within itself, it does not fall within the constitutional prohibition against amendment by implication. The felony-firearm statute is complete within itself. The statute is constitutional.
    Remanded to the trial court for imposition of the mandatory two-year consecutive sentence for the defendant’s conviction pursuant to the felony-firearm statute.
    1. Criminal Law — Constitutional Law — Cruel and Unusual Punishment — Tests.
    Three tests are used to determine whether or not a given punishment constitutes cruel or unusual punishment: to satisfy the first test the punishment must be proportionate to the offense, i.e., the punishment must not exceed that which is suitable to fit the crime; the second test, referred to as the "decency test”, considers the penalties regarded as proper for the offense by examining the penalties imposed for comparative crimes in other jurisdictions; and the third test considers whether the punishment comports with the policy factors behind criminal penalties, rehabilitation of the offender, deterrence of similar behavior on the part of others, and prevention of further harm to society by the individual who committed the offense.
    2. Criminal Law — Sentences — Felony-Firearm — Cruel or Unusual Punishment.
    The two-year term of imprisonment imposed by the felony-firearm statute does not violate the constitutional prohibition against cruel or unusual punishment.
    3. Criminal Law — Felony-Firearm — Double Convictions — Double Jeopardy — Same Transaction.
    Convictions of both felonious assault and possession of a firearm during the commission of a felony, arising out of a single assault committed by a defendant while in possession of a firearm, do not constitute a violation of the constitutional guarantees against double jeopardy.
    4. Criminal Law — Constitutional Law — Double Jeopardy — Same Transaction — Right to Single Trial.
    To satisfy the constraints of the constitutional prohibitions against double jeopardy, a prosecutor must, except in limited circumstances, join at one trial all charges against a defendant arising out of a single criminal act, occurrence or transaction.
    5. Criminal Law — Constitutional Law — Double Jeopardy — Same Transaction — Plea op Guilty — Right to Single Trial — Waiver op Right.
    A defendant waives his right to a single trial on two criminal charges arising out of the same transaction where he has offered a guilty plea to one charge, with a full awareness that the prosecutor intends to proceed to trial on the other charge.
    6. Criminal Law — Sentences — Discretion — Legislature.
    The Legislature is free to retain or delegate sentencing discretion when defining offenses and setting punishment.
    7. Criminal Law — Constitutional Law — Statutes — Felony-Firearm — Title-Object Clause.
    The felony-firearm statute is an act complete within itself, and as such it does not violate the constitutional proscription against revision of a statute by reference to its title only (Const 1963, art 4, § 25, MCL 750.227b; MSA 28.424[2]).

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

      Alphonso R. Harper (by A. George Best, II), for defendant.

      Neal Bush, for intervening defendant.
    Before: D. C. Riley, P.J., and J. H. Gillis and Mackenzie, JJ.
   MacKenzie, J.

Harvey Meeks was convicted in a bench trial of four counts of felonious assault, MCL 750.82; MSA 28.277, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The felony-firearm statute mandates the imposition of a two-year imprisonment term; however, Meeks was sentenced by the Detroit Recorder’s Court judge to 2-1/2 years probation on all of the counts. The prosecutor filed a complaint in this Court for an order of superintending control in the nature of mandamus to compel the trial judge to sentence Meeks to two years imprisonment pursuant to the felony-firearm statute. We remand to the trial court for the imposition of the mandatory two-year consecutive sentence for felony-firearm.

On July 31, 1977, Meeks was involved in an altercation at a bar in the City of Detroit, the bar being located near the boundary between the cities of Detroit and Warren. Meeks left the bar and returned with his son, John, each man carrying a rifle. Shots were fired into a van owned by one of the adversaries, and a motorcycle belonging to a second complainant was damaged.

Meeks and his son then drove into the City of Warren, where they were arrested and charged with carrying a firearm with unlawful intent, contrary to MCL 750.226; MSA 28.423. Meeks subsequently entered a plea of guilty in the City of Warren District Court to a charge of "conspiracy to commit a misdemeanor, to-wit: reckless use of a firearm”.

While the Warren charge was pending, the Wayne County Prosecutor filed against Meeks an action charging four counts of assault with intent to commit murder and one count of possession of a firearm during the commission of a felony. Meeks moved to quash the information on double jeopardy grounds after being convicted on the Warren charge. The motion to quash was denied by the trial judge. This Court denied an application for emergency appeal pursuant to GCR 1963, 806.5. People v Meeks, Docket No. 78-55, order of January 23, 1978 (unreported).

At his bench trial, Meeks was found guilty of the four counts of felonious assault and one count of possession of a firearm while in the commission of a felony. The trial judge declined to impose the mandatory two-year sentence of the felony-firearm statute for reasons of cruel or unusual punishment, due process of law, equal protection, and inherent judicial discretion.

On April 14, 1978, Meeks filed a motion for a new trial based on double jeopardy grounds. He sought an evidentiary hearing to complete the record for his motion, which was held before the trial judge on July 13, 1978. The prosecutor filed a motion to stay the proceedings which was granted by this Court in an order dated July 27, 1978. In the same order, this Court denied Meeks’ motion to intervene in the instant action brought by the prosecutor. The Supreme Court has since directed this Court to permit Meeks to intervene. Wayne Prosecutor v Recorder’s Court Judge, 406 Mich 851 (1979).

I

Does imposition in the instant case of the mandatory penalty under the felony-firearm statute, MCL 750.227b; MSA 28.424(2), constitute cruel or unusual punishment?

At the sentencing proceeding, the trial judge stated that the mandatory two-year sentence of the felony-firearm statute violated the U.S. and Michigan constitutional prohibitions against cruel or unusual punishment. In People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), the Michigan Supreme Court employed three tests for determining whether or not a given punishment constitutes cruel or unusual punishment. To satisfy the first test, the punishment must be proportionate to the offense; i.e., the punishment must not exceed that which is suitable to fit the crime. The second test, referred to as the "decency test”, considers the penalties regarded as proper for the offense by examining the penalties imposed for comparative crimes in other jurisdictions. Finally, the third test considers whether the punishment comports with the policy factors behind criminal penalties—rehabilitation of the offender, deterrence of similar behavior on the part of others, and prevention of further harm to society by the individual who committed the offense.

In Lorentzen, the Michigan Supreme Court held that a minimum sentence of 20 years for the sale of marijuana constituted "cruel and unusual punishment” under US Const, Am VIII, and "cruel or unusual punishment” under Const 1963, art 2, § 16. After examination of the punishment provisions of various other Michigan statutes, including those dealing with offenses involving the sale of different substances, the Court determined that the statute failed to satisfy the test of proportionality. After an examination of the statutes of other states concerned with the sale of marijuana revealed the Michigan statute to be one of the country’s harshest and that there existed a trend toward decreased penalties, the Court concluded that the punishment provision failed the decency test. Finally, the Court determined that a lengthy term of imprisonment for the sale of marijuana would not serve the goal of rehabilitation. The Court concluded by noting that the 20-year sentence "shocks the conscience”.

The tests set forth in Lorentzen were employed by the Michigan Supreme Court in People v Hall, 396 Mich 650; 242 NW2d 377 (1976), where the Court held that a mandatory life sentence for first-degree murder does not violate the constitutional guarantee against cruel or unusual punishment. The Court determined that the term of imprisonment was proportionate to the offense; the punishment exacted in Michigan was not contended to be significantly different from that imposed in other states; and finally, the policy factors of deterrence and prevention of further injury to the public were satisfied by the punishment.

To determine whether the punishment imposed by the felony-firearm statute satisfies the proportionality test, it is necessary to examine the punishments imposed by similar statutes. The maximum punishment imposed for carrying a concealed weapon, MCL 750.227; MSA 28.424, is five years. The maximum term of imprisonment for carrying a dangerous weapon with unlawful intent, MCL 750.226; MSA 28.423, is also five years. The crime of simple assault, MCL 750.81; MSA 28.276, is a misdemeanor, with a maximum term of imprisonment of three months. Felonious assault, MCL 750.82; MSA 28.277, which is a simple assault committed with a dangerous weapon, is a felony with a maximum allowable punishment of four years. When the two-year term of imprisonment imposed by the felony-firearm statute is compared to similar crimes, the punishment exacted satisfies the test of proportionality.

The statute passes the "decency test” as well. An examination of similar statutes of other states does not indicate that Michigan provides a harsher penalty. In Alaska, using or carrying a firearm during certain specified felonies is punishable by not less than ten years imprisonment for conviction of a first offense and not less than 25 years upon conviction for a second or subsequent offense, Alas Stat 11.15.295. The use or possession of a firearm during any felony constitutes a separate felony calling for a consecutive sentence of from three to ten years in the State of Nebraska, Neb Rev Stat § 28-1011.21. In Tennessee, employing a firearm in the commission of a felony is punishable by not less than one year nor more than five years, Tenn Code Ann § 39.4914. The Nevada statute provides that any person who "uses a firearm or other deadly weapon in the commission of a crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by statute for such crime”. The punishment is to run consecutively with the sentence prescribed by statute for the crime and does not apply where the use of a firearm or weapon is a necessary element of the crime, Nev Rev Stat 193.165. The Michigan two-year sentence is well within the limits of penalties imposed for the offense in question by legislatures across the country.

Finally, the two-year sentence is sufficiently brief so that the goal of rehabilitation can be served. The goal of deterrence also is satisfied.

Because the two-year term of imprisonment imposed by the felony-firearm statute satisfies the three tests set forth in People v Lorentzen, supra, and does not "shock the conscience”, we conclude that the punishment does not violate the constitutional prohibition against cruel or unusual punishment.

II

Does conviction of both felonious assault and possession of a ñrearm during the commission of a felony constitute a violation of double jeopardy?

We find no violation of double jeopardy, relying on the recently decided Michigan Supreme Court case of Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

III

Do the convictions in both Detroit Recorder’s Court and the City of Warren District Court, arising out of the same transaction or occurrence, constitute a double jeopardy violation?

Meeks was convicted in Detroit Recorder’s Court of felonious assault and possession of a firearm during the commission of a felony after already pleading guilty in the 37th District Court for the City of Warren to a charge of conspiracy to commit a misdemeanor: reckless use or handling of a firearm, MCL 750.157a, 752.a863; MSA 28.354(1), 28.436(24), an offense arising out of the same "transaction” as the Recorder’s Court offenses. To satisfy the constraints of double jeopardy, the prosecutor must, except in limited circumstances, join at one trial all charges against a defendant arising out of a single criminal act, occurrence, or transaction. People v White, 390 Mich 245; 212 NW2d 222 (1973). A defendant, however, waives his right to a single trial on more than one criminal charge where he has pled guilty to one or more of the charges with an awareness that the prosecutor plans to proceed to trial on the other charge or charges. People v Goans, 59 Mich App 294; 229 NW2d 422 (1975). This exception has been carved out of the "same transaction” test, as preventing a trial on the remaining charge or charges does not further the policy behind the double jeopardy clause of protecting a defendant from harassment. See People v Goans, supra, People v Kenneth Smith, 69 Mich App 537; 245 NW2d 125 (1976). A reading of the transcript of the Warren District Court proceeding clearly indicates that Meeks pled guilty to the Warren charge while aware of the pending charges in Detroit Recorder’s Court. As a result, he has waived any double jeopardy protection.

IV

Does the mandatory sentencing provision of the felony-ñrearm statute violate the separation of powers clause of Const 1963, art 3, § 2?

An argument that the mandatory nature of the sentence provision of the felony-firearm statute violates the separation of powers clausé bécause it precludes a trial judge from exercising discretion in sentencing is without merit. The Legislature is free to retain or delegate sentencing discretion when defining offenses and setting punishment. People v Hall, supra, at 658. In Hall, the Michigan Supreme Court held that a mandatory life sentence for first-degree murder did not offend the separation of powers clause. See also People v Palm, 245 Mich 396; 223 NW 67 (1929).

V

Does the felony-ñrearm statute violate Const 1963, art 4, § 25 for attempting to amend or alter existing law by implication?

This challenge to the felony-firearm statute was considered recently by this Court in . People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). The Court said at 659:

"It is also Contended by defendants that the felony-firearm statute violates the state constitutional prohibition against revising, altering or amending other statutes by implication.
"The article of the constitution which defendants here claim is violated by the felony-firearm statute is Mich Const 1963, art 4, § 25, which provides:
" 'No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be reenacted and published at length.’

The rationale behind this prohibition was reviewed by the Supreme Court in Advisory Opinion re Constitutionality of 1972 PA 294 [389 Mich 441; 208 NW2d 469 (1973)], which was rendered in response to a request by the Governor and the Senate for an advisory opinion as to the constitutionality of 1972 PA 294.”

This Court went on to say that the Supreme Court made it clear that all amendment by implication is not prohibited by the Constitution and that if an act is complete within itself, it does not fall within the constitutional prohibition. The Court found that the felony-firearm statute was complete within itself, requiring reference to no other statute for its meaning, in that it does not alter or amend another statute by reference to its title. Accordingly, the statute was found to be constitutional.

We remand to the trial court for imposition of the mandatory two-year consecutive sentence for defendant’s conviction pursuant to the felony-firearm statute.


source: Caselaw Access Project

author: MacKenzie, P.J.

license: Public Domain

text:
    GANNON v COHOCTAH TOWNSHIP
    Docket Nos. 78-1918, 78-1919.
    Submitted May 2, 1979, at Grand Rapids.
    Decided September 19, 1979.
    In 1971, the assessor of Cohoctah Township decided to increase the aggregate township property tax assessments for the 1972 tax year by 17% to reflect increases in market value and to maintain an equalization factor of one. The formula employed to achieve the increases heavily weighted frontage upon an improved road, with the front ten acres of any parcel bearing a greater burden, and land lying further from the road bearing a smaller portion of the burden. The application of this formula resulted in an aggregate increase of township assessments of approximately 17%, with only minor individual variations except for the parcel owned by plaintiff, Marguerite Gannon. Because the Gannon property was a narrow strip of land running along an improved road, the formula used by the assessor resulted in a 73% increase in the assessed true cash value of the Gannon property in 1972. Increases in assessments from 1973 to 1978 were based on a fixed percentage. Plaintiff challenged the 1972 to 1978 assessments in the residential and small claims division of the Tax Tribunal, which upheld the assessments made by defendant township. Following a rehearing before a Tax Tribunal judge, who affirmed the small claims division decision, plaintiff appeals, arguing that her assessment was unreasonable because of lack of uniformity of the burden imposed by the formula used. Defendant argues that plaintiffs appeal is not properly before the Court of Appeals because of the Tax Tribunal rule prohibiting appeals of decisions of the small claims division and that the greater increase in assessment sustained by plaintiff is proper because extensive road frontage is related to the value of the property if it is used for nonagricultural uses in the future. Held:

    1. The Tax Tribunal rule prohibiting appeals of decisions of the small claims division is invalid in that said rule is in conflict with the applicable provisions of the Tax Tribunal Act and the Michigan Constitution.

      References for Points in Headnotes

       72 Am Jur 2d, State and Local Taxation § 787.

       72 Am Jur 2d, State and Local Taxation § 759.

      2. The use of the formula which heavily emphasized the extent of the parcel’s frontage on an improved road for the purpose of determining the true cash value of agricultural land constituted the adoption of a wrong principle. The agricultural use of the land requires that greater weight be given to such factors as the quality of the soil, zoning and existing use.
    3. Agricultural property may not be assessed on the assumption that it might eventually be used for nonagricultural purposes.
    Remanded for redetermination of the "true cash value” of plaintiff’s property.
    1. Taxation — Appeal and Error — Tax Tribunal — Administrative Rules — Small Claims Division — Prohibition of Appeals — Validity — Statutes — Constitution.
    The Tax Tribunal rule prohibiting appeals of decisions of the Small claims division is invalid in that said rule is in conflict with the applicable provisions of the Tax Tribunal Act and the Michigan Constitution (MCL 205.753[1]; MSA 7.650[53][1], Const 1963, art 6, § 28).
    2. Taxation — Valuation — Property Tax — Assessment — True Cash Value — Agricultural Use — factors — Statutes.
    The use of an assessment formula which heavily emphasizes the extent of a parcel’s frontage on an improved road as the means of determining, for property tax purposes, the true cash value of a parcel of land used for agricultural purposes constitutes the adoption of a wrong principle, since agricultural use of property requires that greater weight be given to such factors as the quality of soil, zoning and the existing use (MCL 211.27; MSA 7.27).
    3. Taxation — Assessment — Property Tax — Agricultural Use — Future Uses.
    It is error to assess agricultural property on the assumption that it might eventually be used for nonagricultural purposes.

      Clark, Hardy, Lewis, Fine & Asher, P.C. (by Dennis R. Pollard), for plaintiff.

      Wilfred H. Erwin, for defendant.

      Before: Mackenzie, P.J., and D. E. Holbrook, Jr. and Cynar, JJ.
   MacKenzie, P.J.

Plaintiff, Marguerite Gannon, appeals a decision of the residential property and small claims division of the Michigan Tax Tribunal which upheld defendant’s assessments of property owned by plaintiff for the tax years of 1972 through 1978. Plaintiff subsequently sought and was granted a rehearing before a Tax Tribunal judge. At the conclusion of this rehearing, the original decision of the small claims division was affirmed. Plaintiff filed a second motion for rehearing which was denied on March 27, 1978.

According to the settled statement of facts, defendant’s assessor decided to increase aggregate township assessments for the 1972 tax year by 17% to reflect increases in market value and to maintain an equalization factor of one. The assessor employed a formula which heavily weighted frontage on an improved road. The weighting was applied to a parcel’s front ten acres; land lying further from the road was allocated a smaller portion of the burden.

Upon application of the assessment formula, the aggregate township increase was approximately 17%. Individual variations were minor except for the parcel owned by plaintiff, which underwent an increase of over 73% (from a true cash value in 1971 of $29,800 to a 1972 value of $51,700). The dramatic increase occurred because the bulk of plaintiff’s property was a narrow strip of land abutting an improved road. The increases from 1973 to present were based on a fixed percentage. The 1978 value was set at $69,900.

Defendant initially contends that plaintiff is precluded from appealing the decision of the Tax Tribunal. Defendant notes that plaintiff elected to have her claim heard by the residential property and small claims division of the Tax Tribunal and, thus, appeal is precluded by Rule 648 of the Tax Tribunal Rules of Practice and Procedure, which provides: "There shall be no appeal from the small claims division”. 1975 AACS R 205.1648.

The residential property and small claims division of the Tax Tribunal was established to hear cases involving homesteads or other residential or agricultural real estate of less than four units, all other property where the requested relief does not increase or decrease the state equalized value by more than $20,000, and any proceeding where the amount of tax in dispute is $1,000 or less. MCL 205.762(1), (2); MSA 7.650(62)(1), (2). A qualifying petitioner may elect to proceed before either the small claims division or the entire tribunal. MCL 205.762(3); MSA 7.650(62X3).

An examination of the statutory sections providing for the small claims division, MCL 205.761 et seq.; MSA. 7.650(61) et seq., reveals no provision precluding an appeal from the division. Rule 648 does, however, conflict with § 53 of the Tax Tribunal Act, which provides:

"Subject to section 28 of article 6 of the constitution of 1963, and pursuant to section 102 of Act No. 306 of the Public Acts of 1969, as amended, being section 24.302 of the Michigan Compiled Laws, and in accordance with general court rules, an appeal from the tribunal’s decision shall be by right to the court of appeals. For purposes of the constitutional provision, the tribunal is the final agency for the administration of property tax laws.” MCL 205.753(1); MSA 7.650(53)(1).

The tribunal rule additionally conflicts with Const 1963, art 6, § 28, which states:

"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.
"In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.”

Thus, under the Michigan Constitution, questions of law raised in Tax Tribunal proceedings, including those in the small claims division, are appealable to this Court. Consequently, we hold Rule 648 of the Tax Tribunal Rules of Practice and Procedure invalid. Plaintiff’s case is properly entertained by this Court.

Plaintiff argues that defendant’s assessor improperly employed an assessment formula which resulted in plaintiffs property sustaining an increase in value much greater than similarly situated property of other taxpayers.

Const 1963, art 9, § 3 provides that an assessment of a parcel of property must not exceed 50% of the true cash value. "True cash value” is defined in MCL 211.27; MSA 7.27, which in 1972 provided:

" 'Cash value’, means the usual selling price at the place where the property to which the term is applied shall be at the time of assessment, being the price which could be obtained therefor at private sale, and not at forced or auction sale. * * * In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, zoning, existing use, present economic income of structures, quantity and value of standing timber, water power and privileges, mines, minerals, quarries or other valuable deposits known to be available therein and their value.”

Under this statute, the terms "true cash value” and "fair market value” are synonymous. CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974). The factors set forth in § 27 are guidelines that aid in the determination of the fair market value of a parcel of property. Safran Printing Co v Detroit, 88 Mich App 376, 382; 276 NW2d 602 (1979).

In the instant case, defendant’s assessor employed a formula which heavily emphasized the extent of a parcel’s frontage on an improved road. However, under § 27, advantage of location is only one of several factors to consider in determining market value. Since plaintiffs property and the surrounding parcels are predominantly agricultural, improved road frontage does not possess the degree of importance it would have if commercial property was involved.

The formula employed by defendant’s assessor reaches the dubious result that two rectangular parcels of farmland, similar in all other respects, possess drastically variant market values because one is located lengthwise along a paved road, while the other’s shorter end abuts it. In light of the agricultural nature of plaintiffs property, greater weight should have been given to other factors set forth in § 27, such as quality of soil, zoning, and existing use. We thus feel that a wrong principle was employed for determination of the true cash value of plaintiffs property.

Defendant suggests that consideration may be given to the fact that the property may be used in the future for nonagricultural purposes; therefore, the placement of great emphasis on improved road frontage was appropriate. We disagree. The land is presently zoned agricultural; it is error to assess noncommercial property on the assumption that it will eventually be used commercially. Kensington Hills Development Co v Milford Twp & Milford Village, 10 Mich App 368; 159 NW2d 330 (1968). It is noteworthy that § 27 was amended in 1973 to include the phrase "including farm structures and present economic income of land when the land is being farmed or otherwise put to income producing use”. This additional factor for consideration in determining the true cash value indicates a legislative intent to prevent farmland from being valued as potential commercial, industrial, or residential property.

Remanded for a redetermination of the "true cash value” of plaintiffs property. No costs, a public question being involved.


author:
D. E. Holbrook, J.
      Allen, P.J.

text:
    SALVATI v DEPARTMENT OF STATE HIGHWAYS
    Docket No. 78-2097.
    Submitted June 15, 1979, at Lansing.
    Decided September 19, 1979.
    Leave to appeal applied for.
    Carmen .Salvati was fatally injured in a collision when he lost control of his automobile on a bridge which had iced over suddenly. This "preferential icing” created a thin layer of ice which was not visible, and the highway was otherwise clear and dry. His widow and executrix of his estate, Helen Salvati, brought an action for wrongful death against the Department of State Highways, alleging that the defendant negligently failed to keep the highway in reasonable repair and in a condition reasonably safe and fit for travel. The Court of Claims, Harry J. Dingeman, Jr., J., granted judgment in favor of the plaintiff. Defendant appeals. Held:

    1. The presence of preferential icing on the roadway, and the posting of a sign which was not illuminated and which read "Watch for Ice on Bridge”, created a hazardous condition. The defendant had both actual and constructive notice of the hazardous condition, and the sign posted did not adequately warn motorists of the preferential icing hazard.
    2. The issue of contributory negligence was pled by the defendant. However, the issue was not dealt with by the Court of Claims. Therefore, the case should be remanded for further proceedings on the issue of contributory negligence.
    Affirmed, but remanded for further proceedings.
    Allen, P.J., dissented. He would hold that preferential icing is a natural accumulation of ice for which the state is not liable to an injured plaintiff. In addition, the warning "Watch for Ice on Bridge” is an adequate warning of the possibility of ice. Such signs are in conformity with existing standards, and the defendant should not be held liable without a showing that the defendant had prior knowledge that the sign was defective. Because the question of whether the state had prior notice of the sign’s alleged inadequacy was not considered by the Court of Claims, the case should be reversed and remanded for a new trial.

      References for Points in Headnotes

       30 Am Jur 2d, Evidence § 1080.
    76 Am Jur 2d, Trial § 1239.
    81 Am Jur 2d, Witnesses § 658.
    Credibility of witnesses giving uncontradicted testimony as matter for court or jury. 62 ALR2d 1191.

       22 Am Jur 2d, Death §§ 225, 242.

       39 Am Jur 2d, Highways, Streets, and Bridges § 513.

       39 Am Jur 2d, Highways and Streets § 463.

      Opinion of the Court
    1. Witnesses — Credibility of Witnesses — Findings of Fact — Appeal and Error.
    The credibility of witnesses is a question for the trier of fact and, on appeal from a bench trial, special regard is given to the findings of the trial court.
    2. Negligence — Wrongful Death — Contributory Negligence — Burden of Proof.
    The plaintiff in a wrongful death action is entitled to a presumption that the decedent acted with due care; the burden of showing that the decedent failed to exercise due care is upon the defendant.
    Dissent by Allen, P.J.
    3. Highways — Negligence — Preferential Icing — Natural Accumulation of Ice or Snow.

      "Preferential icing”, in which ice forms, often instantaneously, on a roadway over an overpass or bridge, is a natural phenomenon and, as such, is a natural accumulation of ice; there is no liability for an accident caused solely by natural accumulations of ice or snow.

    4. Highways — Negligence — Defective Conditions — Signs — Knowledge.

      The statutory duty of a highway department to maintain highways in reasonable repair includes the erection of proper signs; however, liability for an injury caused by a defective condition does not attach unless the unit of government responsible for the maintenance has prior knowledge of the defect and, in the case of a sign, knowledge that the sign did not adequately convey the warning required.

    5. Highways — Signs — Adequacy of Warning.

      A highway sign reading "Watch for Ice on Bridge” adequately warns motorists of the possibility of ice on the roadway ahead; it is not necessary that a sign describe "preferential icing”.

      Merrill, Tatham & Rosati, P.C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Dérengoski, Solicitor General, and Louis J. Caruso and Myron A. McMillan, Assistants Attorney General, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

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

   D. E. Holbrook, J.

This case involves an action for wrongful death suffered on a state highway where 'preferential icing’ and claimed improper and inadequate warning signs were present at the scene of the accident.

Defendant-appellant, Department of State Highways, appeals as of right the judgment of the Court of Claims finding that defendant had negligently maintained a public highway in a manner that caused the death of plaintiffs decedent.

Shortly after 6 a.m. on the morning of February 17, 1972, plaintiffs decedent was driving southbound on 1-75 in Allen Park, Michigan. At the point where 1-75 crosses over the Goddard Road bridge, there are three southbound lanes, each being 12 feet in width. The portion of 1-75 forming the Goddard Road bridge is 1,939 feet in length. The highway pavement was clear and dry on that portion of 1-75 that was built directly on the ground. However, on the highway bridge itself, ice had developed and was present but not visible to the naked eye.

The trial judge in the Court of Claims wrote a very fine opinion, which we adopt in part as our opinion, viz.:

"Plaintiff, as Executrix of the estate of her husband, file[d] a complaint in the Court of Claims against defendant for the wrongful déath of her husband as a result of a February 17, 1972 accident on the 1-75 bridge over Goddard Road in Wayne County. On that date at about 6:20 a.m. plaintiff’s decedent Carmen Salvati was the driver of an automobile travelling south on 1-75. As his vehicle approached the bridge over Goddard Road it came upon other automobiles and a tractor-trailer truck which had skidded, collided and stopped across the bridge as a result of ice on the bridge. Decedent’s automobile skidded on the ice and into the semi-trailer which was across the bridge traffic lanes and he was killed in the crash.
"Plaintiff’s complaint, filed pursuant to the wrongful death act, MCLA 600.2922; MSA 27A.2922, alleges that the proximate causé of the accident was the failure of the defendant to perform its statutory duties under MCLA 691.1402; MSA 3.996(102).
"Defendant denies liability and insists that it exercised reasonable diligence with respect to the conditions which caused the accident and resulted in this claim.
"This case involves a natural phenomenon referred to as 'preferential icing’ throughout this record. It is a fact that bridges in the State of Michigan will frost over when certain climatic conditions and temperatures reach known degrees in the hours between 6:00 a.m. and 7:30 a.m. When a bridge deck surface temperature is 32 degrees, the air temperature is 35-36 degrees and the relative humidity is 85%, instant ice is formed. This is a fact well known to the Michigan Department of State Highways. On 1-75 there is a five or six mile section bn which there are some five bridges in succession. From the East, this section of 1-75 and its bridges begins with the very long river Rouge Bridge and ends with the Goddard Road bridge at the South extremity. Because the 'preferential icing’ phenomenon is well known to the defendant it has a contract with the Wayne County Road Commission whereby the latter maintains a salt truck 'morning patrol’ of the five bridge area on 1-75, from 6:00 a.m. to 7:30 a.m., Monday through Friday, beginning in November and continuing until April 15th each year. Its function is to check for ice and salt it when found. As a matter of fact, the 'patrol’ was in operation on February 17,1972, beginning at 6:00 a.m., but despite it being in operation the accidents on the Goddard Road bridge that morning occurred as a result of'preferential icing’.
"It is the testimony that ice forms instantaneously when the weather phenomena occurs and that the ice on the bridge deck surface cannot be seen.
"The defendant relies upon the fact of the 'patrol’ and also upon the fact of a sign some distance before the approach to the Goddard Road bridge which says "Watch for Ice on Bridge”. It is claimed that this and the 'patrol’ satisfies its’ statutory duty to keep the highway in condition reasonably safe and fit for travel. And further, that there was no way of forewarning or predicting ice on the bridge or advising the motoring public of it.
"The evidence introduced indicates that the posted sign is not illuminated; that the speed limit on 1-75 in that area at the time of the accident was seventy (70) miles per hour; and, that the road leading to the bridge deck was straight and dry.
"The court finds that on February 17, 1972, at the time of the accident which took the life of plaintiff’s decedent, the Goddard Road bridge on 1-75 was made hazardous to vehicular traffic by the presence of 'preferential icing’ thereon. That the climatological phenomenon of 'preferential icing’ was well known to defendant and that it had notice of the regular possibility of it occurring on the Goddard Road bridge any day between the hours of 6:00 a.m. and 7:30 a.m. from November until April 15th. Further, that at the time of the accident the road surface approaching the bridge was dry, at 6:20 a.m. it was dark, and an unlighted sign approximately 1000 feet before the bridge was displayed on the shoulder which bore the legend "Watch for Ice on Bridge”.
"It has been held that the state’s obligation to maintain highways includes the duty to post signs and warn motorists at points of special danger. National Bank of Detroit, v Department of State Highways, 51 Mich App 415 [215 NW2d 599 (1974)]; O’Hare v City of Detroit, 362 Mich 19 [106 NW2d 538 (1960)]; Williams v Department of State Highways, 44 Mich App 51 [205 NW2d 200 (1972)]. Statutory liability requires that the State keep highways under its jurisdiction 'in reasonable repair, and in condition reasonably safe and fit for travel’, (underscoring supplied) MCLA 691.1402; MSA 3.996(102).
"It is the opinion of this court that the signing at the site does not adequately warn of the danger. The sign language "Watch for Ice on Bridge” hardly can be said to be meaningful when it gives no instruction to motorists as to the action or precaution to be taken if there is ice on the bridge. Its visibility in the dark and its 'noticeability’ by motorists highly negative factors, in view of the expert testimony that tests indicate that motorists see such a sign less than fifty (50%) percent of the time. Lastly, the message "Watch for Ice on Bridge” seems to be incongruous advice in view of the testimony that when ice is present on the bridge deck surface it cannot be seen.
"It is the conclusion of this court from the evidence that the state was negligent and that its failure to keep the highway site here involved in condition reasonably safe and fit for travel was a proximate cause of the plaintiff’s losses.
"The plaintiff Executrix was widowed by the February 17, 1972 accident and seeks damages for the loss of support, society and companionship resulting to her from the loss of her husband, and his funeral expenses which amounted to $1,857.48. Testimony indicated that the deceased was sixty-six years of age at the time of the fatal accident. He had a statutory life expectancy of 12.31 years.
"Defendant urges that the only recoverable item of loss is the funeral expense.
"MCLA 600.2922; MSA 27A.2922 in pertinent part provides as follows:
"(2) '* * *, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while consious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by wrongful act, neglect or fault of another may also include recovery for the loss of society and companionship of the deceased.’ (underscoring not supplied)
"Also,
(1) 'Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.’ ” (underscoring supplied)
"Lastly, MCLA 691.1402; MSA 3.996(102) in pertinent part provides as follows:
"Sec. 2. '* * *. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.’ (underscoring supplied)
"The language 'bodily injury’ has been held not to exclude injuries resulting in death, and it has been observed by the Michigan Court of Appeals that numerous death actions have been maintained under MCLA 691.1402; MSA 3.996(102). Phelps v Dep’t of State Highways, 75 Mich App 442 [254 NW2d 923 (1977)]; Hobbs v Department of State Highways, 398 Mich 90 [247 NW2d 754 (1976)].
"In view of the foregoing, and interpreting the statutes in a manner that does not lead to absurd results, the defendant’s contention is rejected.
"Accordingly, plaintiff herein may have judgment in the total sum of One hundred Seventy-five Thousand ($175,000.00) Dollars to compensate her for all recoverable losses sustained as a result of the February 17, 1972 accident in which her husband was killed. This amount is to be reduced by a credit of Twenty-two Thousand ($22,000.00) Dollars recovered by plaintiff in settlement of a companion lawsuit brought against other defendants and instituted in the Circuit Court for the County of Wayne, being Case No. 74 007 504 NI, which was consolidated with this case and assigned to this court for trial.”

We agree with the findings of the trial court that the approach to the Goddard Road bridge being dry with traction and the presence of 'preferential icing’ on the bridge during the early morning hours of February 17, when this accident occurred, coupled with a posted sign not illuminated, difficult to see and only reading "Watch for Ice on Bridge”, created a hazardous condition for vehicular traffic. We also agree that defendant did negligently maintain the public highway in a manner that caused the death of plaintiffs decedent.

We further agree that the defendant had both actual and constructive notice of the hazardous condition of the highway, having taken inadequate steps to warn the motoring public of the dangerous conditions present. Also we note that the salt truck was there that morning and had it salted the Goddard Road bridge before the accident instead of after it—the accident may not have happened and plaintiffs decedent may not have lost his life. In any event the sign was clearly improper and inadequate—how can one watch for ice that cannot be seen? The defendant had a duty under the circumstances to warn the users of the highway of the impending danger in a meaningful manner. The minimum message that should have been conveyed to the motorist was that the bridge deck may be icy even though the highway approach to the bridge is clear and dry. This defendant failed to do.

When a motorist gets on ice he cannot stop and he has no control over his vehicle. If he is going straight ahead on dry pavement and hits the unseen ice and tries to stop, he proceeds straight ahead and skids or slides until stopped.

In the recent case of Greenleaf v Dep’t of State Highways & Transportation, 90 Mich App 277, 284-285; 282 NW2d 805 (1979), it is stated in part as follows:

"Defendants also question the court’s ruling that it did not adequately warn the traveling public of the possibility of icing occurring on the bridge.
"The duty resting upon a municipality to make its streets reasonably safe includes placing signs or other safeguards at points of special danger or giving other proper warning. Tuttle [v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976)], supra, at 52, Joslyn v Detroit, 74 Mich 458, 461; 42 NW 50 (1889), Mullins v Wayne County, 16 Mich App 365, 373, 378; 168 NW2d 246 (1969).
"There is no question that defendant had knowledge of the propensities of the bridge for preferential icing. Accident statistics indicated that in 1970, ten accidents caused by ice on clear days took place near or on the bridge, and in 1971, six similar accidents were recorded.
"Conflicting testimony was presented at trial whether a "Watch For Ice On Bridge” sign was visible on the date in question. The Court of Claims chose to believe plaintiffs’ witnesses and found the sign was not visible to passing motorists.
"After reviewing the evidence, we cannot say the finding of the Court of Claims is clearly erroneous. The credibility of witnesses is a question for the trier of fact, and, in a bench trial, special regard is given to the findings of the trial court. Ross v Richardson, 29 Mich App 110, 111; 185 NW2d 106 (1970), GCR 1963, 517.1.”

The trial court under the evidence was presented with a question of fact. There is no question but that a dangerous condition existed at the time and place of the accident and defendant was well aware of it. The defendant had the duty to adequately inform the travelling public of the danger by proper signs or giving other proper warning. The trial judge found in the case that "Its [the sign] visibility in the dark and its 'noticeability’ by motorists are highly negative factors, in view of the expert testimony that tests indicate that motorists see such a sign less than fifty (50%) percent of the time”. He further found "that the signing at the site does not adequately warn of the danger”. (Emphasis supplied.)

After reviewing the evidence, we cannot say the finding of facts of the Court of Claims is clearly erroneous. The credibility of witnesses is a question for the trier of fact, and, in a bench trial, special regard is given to the findings of the trial court. Ross, supra.

There is one issue of defendant’s that requires further discussion. Defendant claims that the trial court failed to determine the question of plaintiffs contributory negligence. The defendant pled contributory negligence in its answer as an affirmative defense. Plaintiff asserts that defendant failed to present evidence on the subject and further that defendant did not argue this issue nor request such a finding by the trial court.

In a wrongful death action, the plaintiff is entitled to a presumption that the decedent acted with due care. Koehler v Detroit Edison Co, 383 Mich 224; 174 NW2d 827 (1970). Whether the decedent failed to exercise due care is a question of fact with the burden upon the defendant in this case to show that failure by a preponderance of the evidence.

It appears to this Court that defendant may rely on all the evidence to prove that plaintiff was guilty of contributory negligence.

GCR 1963, 517.1 states that in all actions tried upon the facts without a jury a trial judge is required to find facts specifically and state separately conclusions of law thereon. This the trial court did not do because the issue of contributory negligence was not mentioned and determined in the opinion.

We therefore affirm on all issues raised by defendant except that we remand to the trial court to make findings of fact and conclusions of law on the issue of contributory negligence.

Costs to be awarded on final disposition of the case. We retain jurisdiction.

T. M. Burns, J., concurred.

Allen, P.J.

(dissenting). I cannot agree with the conclusion of the majority opinion that a hazardous condition was created for which the state is liable when a natural phenomenon known as "preferential icing” occurs on a bridge and where that occurrence is coupled with no more than (a) the approach to the bridge being dry and without ice and (b) a nonilluminated sign reading "Watch for Ice on Bridge”. Such a holding imposes too strict and unrealistic a burden on the state. Further, such holding is contrary to the conclusion reached by a different panel of this Court that preferential icing is not a defect for which the state is liable. Greenleaf v Dep’t of State Highways & Transportation, 90 Mich App 277; 282 NW2d 805 (1979).

The factual situation in Greenleaf was similar to the instant case. Plaintiff lost control of her automobile on ice on an overpass bridge on US23 near Fenton. The phenomenon described as preferential icing caused the accident. As in the case before us, the bridge was high and long, the roadbed leading to the bridge was dry, and there was no evidence that there was a defect in the bridge itself or that the bridge was improperly designed. There was testimony that there was a sign reading "Watch For Ice on Bridge” although, unlike the case before us, a majority of the witnesses testified that the sign did not exist. In what the Court described as "a case of first impression” the Court rejected the finding of the Court of Claims that the Highway Department was negligent due to inadequate methods of handling the icing conditions.

"In the instant case, testimony elicited from witnesses for both parties indicated that it was impossible to predict when preferential icing would occur. Although temperature was one indicator, there are numerous other relevant factors.
"All the expert witnesses agreed that the icing could occur suddenly and almost instantaneously.
"A maintenance engineer for the Highway Department indicated that an observer could drive over a bridge and find it clear, but that it could ice up immediately afterward. It was also established that salting the highway in anticipation of this problem would be of no value since the salt would be blown off a dry road within minutes by traffic.
"The fact that the Highway Department program of highway surveillance was not in operation on November 8, 1971, does not clearly mandate a finding of negligence. The icing phenomenon is of a highly unpredictable and rapid nature. Short of full-time human surveillance of the bridge from early fall to late spring, there is no assured method for immediate detection of this condition.
”The Highway Department cannot be held to so stringent a standard. Based upon the evidence, the finding of the Court of Claims that the defendants were negligent due to inadequate methods of handling the icing conditions is clearly erroneous. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).” 90 Mich App 277 at 283-284. (Emphasis supplied.)

In fact, the instant case is more favorable to defendants than Greenleaf, since in Greenleaf there was no program of ice surveillance at all, whereas in the instant case a salt truck patrol was in operation. The record discloses that on the morning of the accident, at 6:03 a.m. an employee of the Wayne County Road Commission had driven a salt truck over the Goddard Road bridge, had examined it for preferential icing and had found no ice. The employee then drove north, checking on other bridges which he found without ice until he reached the Rouge Bridge which had begun to ice. The employee salted the bridge, turned about and drove south salting the other bridges until he came to the Goddard Road bridge where he saw the accident had taken place. Based on the record, the accident occurred soon after 6 a.m. when the bridge was first inspected. Given these facts, it appears unreasonable to conclude that the defendants were either remiss in their duty to maintain a safe highway or that defendants had actual knowledge that icing had occurred. In Hampton v Master Products, Inc, 84 Mich App 767, 773; 270 NW2d 514 (1978), this Court favorably quoted 19 McQuillin, Municipal Corporations (3d ed), § 54.107, pp 389-391, as follows:

" 'No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.’ ”

From the above it is clear that, to the extent that the majority finds liability because of ice on the bridge, the opinion errs. Preferential icing is a natural phenomenon and, as such, is a natural accumulation. In Michigan there is no liability for an accident caused solely by natural accumulations of ice or snow. Hampton v Master Products, Inc, supra, at 770-772. This was the holding in Greenleaf which, in a case of first impression, applied the doctrine to preferential icing.

I do agree that liability might flow from the absence of a sign or from the inadequacy of a sign. The issue of the adequacy of the sign’s wording was not reached in Greenleaf. The trial court found, and my brethren agree, that the words "Watch for Ice on Bridge” do not adequately warn of the dangerous phenomenon of preferential icing. In their opinion the sign conveys a false message to the motorist to use his visual senses to see that which cannot be seen. I disagree. It is not necessary that a sign describe preferential icing. All that is necessary is that the sign adequately warn the motorist of the possibility of ice. I think the sign did so. To me, "Watch for Ice” means watch out for ice. It does not mean look for ice that cannot be seen. Further, there was not one sign, there were two. Each sign was reflective and plainly visible with headlights. The signs are in conformity with the Federal Highway Administration traffic signing manual which does not provide any other legend for signs involving warnings of ice.

Plaintiffs expert testified that a flashing sign would be preferable. However, the complexity of activating the sign when the icing occurs was not resolved. No device is available which automatically turns such a sign on when needed. But even if we assume, arguendo, that the sign was inadequate either because of its wording or because it was not lighted, plaintiff may not recover. For, if this be so, the "dangerous condition” is the defect in the "Watch for Ice on Bridge” sign. The statutory duty to maintain highways "in reasonable repair” includes proper signing. O’Hare v Detroit, 362 Mich 19, 26; 106 NW2d 538 (1960). But liability does not attach unless the local unit of government has prior knowledge of the defect, viz.:—that the sign did not adequately convey the warning required. No such evidence appears in the record, and the trial court made no finding that the defendant had actual or constructive notice that the sign was defective.

In summary, I fear the majority invites wholesale liability by concluding that a reflectorized sign reading "Watch for Ice on Bridge” is a highway defect where preferential icing occurs. I would not, however, rule that in the case before us the state is not liable as a matter of law. In deference to the trial judge, the matter was tried without benefit of an appellate opinion in Michigan on preferential icing. Had the trial court known of Greenleaf, the court might well have come to a different conclusion. Completely overlooked was the question of whether the state had prior notice of the sign’s alleged inadequacy. Therefore, I would not reverse and dismiss but would reverse and remand for a new trial in the Court of Claims.

      A flashing illuminated sign "during the hours of 'preferential icing’ ” in the winter stating "Reduce Speed—Ice condition on Bridge, when Highway is dry” would warn a motorist of the dangerous condition.

       Plaintiff in Greenleaf did not plead the bridge was defectively constructed or designed. Such allegation was pled in the instant case but no witnesses testified as to the design or construction of the bridge. Thus, in both cases, there was no defect in the bridge.

       Because three witnesses in Greenleaf testified there was no "Watch for Ice on Bridge” sign on the day of the accident and only one witness of the defendant, whose testimony was that he had erected the sign five days before the accident, our Court held that the trial judge did not err in finding liability on the basis that the defendant failed to give any warning at all.

       At best, the alleged inadequacy of the sign was not flagrant. It is the same signing as is recommended nationally by the Federal Highway Administration. Under prior decisions a defect must be shown to be "flagrant”. Mullins v Wayne County, 16 Mich App 365, 380; 168 NW2d 246 (1969). See also 45 ALR3d 875, 888-889. But the requirement that the defect must be "flagrant” or "palpably dangerous” was abolished in Arnold v Dep’t of State Highways, 406 Mich 235, 238-239; 277 NW2d 627 (1979).


author: R. B. Burns, P.J. Allen, J.

text:
    KELLER v LOSINSKI
    Docket No. 78-2176.
    Submitted March 6, 1979, at Grand Rapids.
    Decided September 19, 1979.
    Leave to appeal applied for.
    Plaintiff, Michael J. Keller, was riding a motorcycle owned by his first cousin’s husband, Jack Kozloski, with whom he was living, when he was injured in a collision with an automobile owned and operated by defendant David J. Losinski. Defendant Michigan Mutual Liability Company provided no-fault insurance coverage on Mr. Losinski’s car. Defendant League General Insurance Company provided no-fault insurance coverage on the Kozloski family car. The motorcycle had standard cycle coverage but did not have no-fault coverage. After the accident, Mr. Kozloski made an oral claim against League General and was informed that his no-fault policy did not cover accidents on his motorcycle. Plaintiff, knowing of League General’s disclaimer of liability, filed suit against Mr. Losinski and Michigan Mutual, which had paid plaintiff’s medical bills, for personal protection insurance benefits. League General was added as a party defendant upon stipulation of the original parties and Michigan Mutual cross-claimed against it, claiming that it was primarily liable to plaintiff. League General moved for summary judgment for failure to state a claim and accelerated judgment for lack of jurisdiction and capacity to sue on the part of Michigan Mutual and for the reason that the claim was barred by the statute of limitations. Plaintiff moved for summary judgment alleging that Michigan Mutual was liable for plaintiff’s injuries and Michigan Mutual moved for summary judgment alleging it had paid all the benefits due plaintiff. The Branch Circuit Court, Thomas C. Megargle, J., denied Michigan Mutual’s motion, granted plaintiff’s motion and held that, although League General’s statute of limitations argument did not apply, Michigan Mutual had failed to state a cause of action. After a motion for rehearing was denied, Michigan Mutual appealed and- League General cross-appealed. Held:

      References for Points in Headnotes

       7 Am Jur 2d, Automobile Insurance § 203.

       41 Am Jur 2d, Indemnity § 39.
    What statute of limitations covers actions for indemnity. 57 ALR3d 833.

       Am Jur 2d New Topic Service, No-Fault Insurance § 1.

       41 Am Jur 2d, Indemnity §§ 19, 20.

       54 Am Jur 2d, Mistake, Accident or Surprise § 24.

      An insurance company has one year from the date of the accident to sue to recover from another insurer personal protection benefits paid under the mistaken belief that the injured party was not covered by insurance where the other insurer was not notified in writing of the accident and two years when the other insurer has been given written notice. Therefore, League General’s motion for accelerated judgment should have been granted and Michigan Mutual’s action dismissed.
    Remanded.
    Ailen, J., dissented. He would hold that the Legislature, in enacting the no-fault statute, intended to provide: a) prompt and speedy payment of claims for economic loss; b) prompt and fair opportunity to investigate claims for losses, and c) protection from protracted litigation. He would further hold that Michigan Mutual’s action against League General was in the nature of indemnity, for which the statute of limitations begins to run either on the date the mistake is discovered or the date the payment is made. He would reverse and remand for trial.
    Opinion of the Court
    1. Insurance — No-Fault Insurance — Statute of Limitations.
    An insurance company has one year from the date of the accident to sue to recover from another insurer personal protection benefits paid under the mistaken belief that the injured party was not covered by insurance where the other insurer was not notified in writing of the accident and two years when the other insurer has been given written notice (MCL 500.3145[1]; MSA 24.13145[1]).
    Dissent by Allen, J.
    2. Insurance — No-Fault Insurance — Statutes — Legislative Purpose.

      The Legislature, in enacting the no-fault statute, intended to provide: a) prompt and speedy payment of claims for economic loss; b) prompt and fair opportunity to investigate claims for losses, and c) protection from protracted litigation (MCL 500.3101 et seq.; MSA 24.13101 et seq.).

    3. Indemnity — Contracts — Negligence — Torts.

      An implied contract of indemnity arises in favor of a person who, without any fault on his part, is exposed to liability and

      compelled to pay damages on account of the negligence or tortious act of another; this right of indemnity is based on the principle that everyone is responsible for his own negligence and it exists independently of statute, and whether or not contractual relations exist between the parties, and whether or not the negligent person owed the other a special or particular legal duty not to be negligent; a claim by one no-fault insurer against another to recover personal protection beneñts paid under the mistaken belief that the injured party was not covered by any other insurance is in the nature of indemnity.

    4. Limitation of Actions — Indemnity.

      The limitation period governing actions to recover payments made by mistake commences to run either on the date the mistake is discovered or the date the payment is made.

      Lilly & Domeny, P.C. (by Sally Zack Wheeler), for defendant Michigan Mutual Liability Company.

      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendant League General Insurance Company.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   R. B. Burns, P.J.

This case involves a collision between a motorcycle and an automobile. The dispute in this case is between two insurance companies each of which maintains that the other must pay no-fault benefits to the injured motorcyclist.

On March 22, 1975, plaintiff, while riding a motorcycle owned by Jack Kozloski, collided with an automobile owned and operated by defendant Losinski. Defendant Michigan Mutual Insurance Company provided no-fault automobile insurance on the Losinski car. Defendant League General Insurance Company provided no-fault automobile insurance on the family car owned by Jack and Mary Kozloski. The motorcycle had standard cycle coverage but did not have no-fault coverage. Plaintiff, a first cousin of Mary Kozloski, was allegedly living with the Kozloskis at the time of the accident and had Jack Kozloski’s permission to use the motorcycle.

Shortly after the accident, Kozloski made an oral claim against League General but the agent in League General’s office immediately informed Kozloski that his no-fault policy did not cover accidents on his motorcycle. Upon learning of League General’s claim of noncoverage, plaintiff made claim against Michigan Mutual.

Plaintiff filed suit against defendants Losinski and Michigan Mutual. League General was added as a "party defendant” upon the stipulation of the parties, and Michigan Mutual cross-claimed against League General.

Upon being joined, League General moved for summary judgment, claiming a failure to state a cause of action, GCR 1963, 117.2(1), and for accelerated judgment, GCR 1963, 116.1, claiming lack of jurisdiction, lack of capacity to sue on the part of Michigan Mutual and that any claim against it was barred by the no-fault statute of limitations. Shortly thereafter, plaintiff moved for summary judgment alleging that Michigan Mutual was liable to pay for the injuries suffered by plaintiff. Michigan Mutual filed a motion for summary judgment claiming that it had paid all the no-fault benefits due plaintiff.

After a hearing on the motions, the trial court denied Michigan Mutual’s motion, granted plaintiff’s motion and held that, although League General’s statute of limitations argument did not apply, Michigan Mutual had failed to state a cause of action. Michigan Mutual sought a rehearing which was denied.

The substance of Michigan Mutual’s appeal is its desire to shift liability to League General and thereby to be reimbursed for its payments to plaintiff. The question which Michigan Mutual thus presents is whether a motorcyclist may recover benefits under a no-fault policy covering a motor vehicle with which the motorcyclist has collided, if he is covered by a no-fault policy on the automobile of the motorcycle’s owner. We do not, however, reach this issue because, on League General’s cross-appeal, we find that the trial court erred in denying League General’s motion for accelerated judgment.

League General received no written notice of plaintiff’s injury within a year of the accident and though the accident occurred on March 22, 1975, no attempt was made to bring League General into this action until April 20, 1977. Claims based on an obligation of League General to pay personal protection insurance benefits for plaintiff’s injury are therefore barred by the time limitations established by the no-fault statute. MCL 500.3145(1); MSA 24.13145(1).

Arguments presented by Michigan Mutual to avoid the consequences of this statute of limitations have been rejected by the Court in Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978). Nor does this Court believe that the requirements of the doctrine of equitable estoppel are met in the present action. League General did not intentionally misinform plaintiff and then seek to deny the information it had given to plaintiff. Rather, League General accurately stated to plaintiff the position which it continues to advance. There is nothing for the Court to estop League General from denying.

Finally, Michigan Mutual cannot avoid the statute of limitations by classifying its action as one for indemnification rather than one for recovery on personal injuries. In its indemnification action, Michigan Mutual is subrogated to plaintiffs rights and cannot recover where plaintiff would be barred from bringing his own action.

Accordingly, we hold that League General’s motion for accelerated judgment should have been granted and Michigan Mutual’s action dismissed.

Remanded for action in accordance with this opinion. Costs to League General.

Mackenzie, J., concurred.

Allen, J.

(dissenting). I cannot agree that the statute of limitations is a bar to Michigan Mutual’s claim for reimbursement from League General. The statute, MCL 500.3145(1); MSA 24.13145(1), reads:

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

My brethren hold that the arguments advanced by Michigan Mutual to avoid the above statute were made and rejected in Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978). I strongly disagree. In Davis, the dispute was between the policyholder and his insurer. The instant case is a dispute between two insurers, one of which paid the policyholder under the mistaken conclusion that the injured party had no other insurance. The factual situations are so totally dissimilar, I cannot believe Davis controls. In enacting the no-fault statute the Legislature sought to provide (a) prompt and speedy payment of the policyholders’ claims for economic losses, (b) prompt and fair opportunity to investigate claims for losses, and (c) protection from protracted litigation. Shavers v Attorney General, 65 Mich App 355, 370; 237 NW2d 325 (1975), aff'd in part, 402 Mich 554; 267 NW2d 72 (1978). Purposes (a) and (b) were satisfied in the instant case since the insured received payment within the required time period, and prior to payment an investigation of the facts of the loss and accident was made, albeit by the wrong insurer. In Davis, no notice was given within the one-year period to either his insurer or any other insurer. Consequently, none of the statute’s policy orientations were present.

I find this case is an action to recover monies paid under a mistake in fact and is not an action to recover sums due for economic losses under automobile no-fault. Based on the pleadings-— which we must assume to be true for purposes of disposing of a motion for summary judgment— Michigan Mutual paid the injured party, Keller, because it mistakenly believed Keller had no insurance. Such was the finding of the trial court. The law is well settled that monies voluntarily paid, if paid under a material mistake, is due to a lack of investigation. Couper v Metropolitan Life Ins Co, 250 Mich 540; 230 NW 929 (1930), Montgomery Ward & Co v Williams, 330 Mich 275, 284; 47 NW2d 607 (1951).

The instant suit is in the nature of an action for indemnity rather than an action for automobile insurance benefits. In Dale v Whiteman, 388 Mich 698, 705-706; 202 NW2d 797 (1972), the principles of indemnity were summarized in a question from 42 CJS, Indemnity, § 21, pp 596, 597:

"It is a well-recognized rule that an implied contract of indemnity arises in favor of a person who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another, the former having a right of action against the latter for indemnity ***.***
"This right of indemnity is based on the principle that everyone is responsible for his own negligence * * *. It exists independently of statute, and whether or not contractual relations exist between the parties, and whether or not the negligent person owed the other a special or particular legal duty not to be negligent.”

Michigan Mutual, through no fault of its own, was ordered to pay plaintiff benefits which should have been paid by League General. It was League General’s mistaken instructions to Kozloski that exposed Michigan Mutual to the claim made by plaintiff, and it was this same error by League General that kept it from being timely brought into the suit. Under the principle that everyone is responsible for his own negligence, League General must be held liable for its "negligence” in misinforming Kozloski of the ambit of his insurance coverage.

The essence of this case is Michigan Mutual’s desire to be repaid for sums it paid under protest and, as it turns out, unnecessarily. It was League General’s mistake in telling Jack Kozloski that its policy would not cover plaintiffs motorcycle accident that led to the claims against Michigan Mutual and Michigan Mutual’s payments. Given the newness of no-fault and the confusion concerning to whom an injured cyclist looks for personal protection benefits, it is not at all surprising that League General mistakenly informed its insured that the policy provided no coverage for the injured motorcyclist. Despite the innocence of League General’s mistake, that in itself cannot avoid League General’s liability. Furthermore, it was also League General’s response to Kozloski’s phone call (as per League General’s printed instructions) which effectively prevented any written notice being given to League General. While this is not the typical two-party situation where indemnity usually lies, the facts of this case make relief appropriate.

The limitation period governing actions to recover payments made by mistake commences to run either on the date the mistake was discovered or on the date the payment was made. Anno: When statute of limitations begins to run against action to recover money paid by mistake, 79 ALR3d 754. Michigan Mutual’s demand for recovery was made soon after the mistake was discovered. For these reasons I conclude Michigan Mutual’s claim is not barred by the statute.

Because my brethren found Michigan Mutual’s claim barred by the statute of limitations, the majority opinion did not discuss the other issues raised on appeal. Because I find the claim not barred by the limitation period, I feel it necessary to address these remaining issues.

I. Was League General Properly Made A Party Defendant?

As an initial contention League General claims the trial court never had proper jurisdiction over it since it was never properly joined. Technically, a third party is properly joined by service of a third-party complaint upon the party. This procedure is governed by GCR 1963, 204. In the instant case this was not done. Instead, the parties agreed to add League General, the court issued an order adding League General and Michigan Mutual then cross-claimed. The better procedure would have been for Michigan Mutual to request the court’s permission to serve League General as a third-party defendant. But League General does not show any prejudice from the procedure used here. League General does not contend it was not notified or had insufficient opportunity to prepare its defense. Furthermore, since the court signed an order joining League General, it is apparent the Court would have permitted Michigan Mutual to serve a complaint upon League General. Under these circumstances League General’s argument that the court lacked jurisdiction over it is rejected.

II. Which Insurer Is Responsible For A Motorcyclist’s Medical Expenses?

A more significant issue concerns which insurer —that which insures the motorcyclist’s personal automobile or that which insured the automobile involved in the accident—is responsible for plaintiff’s losses. The issue has previously been before this Court, but the disposition of the problem is at best confusing. Clarification of apparent conflicting opinions is required.

The first case to consider the issue concluded that the insurer of the automobile involved in the accident was liable to the motorcyclist. Underhill v Safeco Ins Co, 76 Mich App 13; 255 NW2d 349 (1976), lv gtd, 403 Mich 851 (1978). Underhill reasoned that a motorcyclist is "not an occupant of a motor vehicle” and that such persons can recover from the insurer of the "motor vehicle” involved under MCL 500.3115(1); MSA 24.13115(1). In the Underhill opinion there is no mention of whether the motorcyclist had personal no-fault coverage, although he did have a motorcycle liability policy. In fact, the file discloses the motorcyclist had no coverage whatsoever.

The next time the issue arose the injured motorcyclist did have no-fault coverage on a personal automobile. Davidson v Johnson, 76 Mich App 497; 257 NW2d 139 (1977). The Court relied heavily on Underhill and concluded that plaintiff Davidson, the injured motorcyclist, should recover from the automobile involved in the accident rather than the no-fault policy which covered Davidson when he drove his automobile insured by Citizens Mutual. Section 3115 was again pivotal, and it was buttressed by § 3105(1).

The Davidson panel later reheard the case. Davidson v Johnson (On Rehearing), 79 Mich App 660; 262 NW2d 887 (1977) (Davidson II). The principal issue considered on rehearing was the validity of deductible provisions in MCL 500.3109(3); MSA 24.13109(3). However, despite the lack of discussion on the issue, Davidson II indicated that the injured motorcyclists involved were to recover from the no-fault insurer of their own automobiles.

The issue was next considered in Porter v Michigan Mutual Liability Co, 80 Mich App 145, 149-150; 263 NW2d 318 (1977), lv gtd, 403 Mich 851 (1978). Porter recognized that a motorcyclist may recover from the insurer of the "motor vehicle” involved in the accident under MCL 500.3115(1); MSA 24.13115(1). But the Porter majority further recognized that the effect of § 3115(1) was qualified by § 3114(1). Section 3114(1) was read to indicate that when personal protection insurance benefits are payable under an insured’s policy, that policy pays all of the benefits even though the insured is covered by another policy. That meant the motorcyclist looked to his own no-fault automobile insurer. In Porter, there was also the additional fact that the motorcyclist’s no-fault automobile policy carried optional coverage for injuries received while motorcycling. Chief Judge Danhof dissented in Porter. He preferred the reasoning in Davidson I based on § 3115(1). He read § 3114(1) to merely establish priorities among household policies covering the same person.

The most recent published case addressing this issue is Piersante v American Fidelity Ins Co, 88 Mich App 607; 278 NW2d 691 (1979). Piersante relied heavily on Porter, and concluded that the motorcyclist recovers from his personal no-fault automobile insurer. Piersante disagreed with an attempt to distinguish Porter on the "optional coverage” factor by relying on MCL 500.3105(1); MSA 24.13105(1) which does not require the insured to be the driver of the motor vehicle involved.

To a great extent, these cases can be harmonized. Underhill, the first Davidson opinion, and the Danhof dissent in Porter all concluded that recovery was to be from the insurer of the "motor vehicle” (automobile) involved in the accident. These cases relied on § 3115(1). Davidson II, the Porter majority, and Piersante concluded the motorcyclist recovers from his own no-fault automobile insurer. However, Davidson I is superseded by Davidson II. 79 Mich App 660, 662, fn 1. Underhill is distinguishable because the motorcyclist there did not have any no-fault insurance to turn to. Consequently, this leaves inconsistent only the dissent in Porter which, if followed, would have the instant plaintiff recover from the insurer of the automobile involved in the accident. But, because the absence of no-fault insurance in Underwood is not apparent, the cases appear inconsistent. Sans this explanation they are confusing.

The weight of authority is correct and plaintiff should recover from the no-fault policy which covers him for automobile accidents, i.e., League General in this case. This conclusion turns largely on the meaning of §3114(1) which is the only section in the no-fault act requiring one to look first to his own insurer. If § 3114(1) is construed merely as a priority provision, insurer liability would be governed by § 3114(4) for occupants and § 3115(1) for nonoccupants. But this construction makes the initial "[e]xcept as provided” clause, found in both §3114(4) and §3115(1), somewhat incongruous. Moreover, an express reference to recovery from one’s own insurer, one of the principal concepts underlying no-fault, is conspicuously absent.

Section 3114(1) is the operative section of the act. Consequently, when a person is involved in an accident the first question to determine is whether the person has his own insurance. If so, that is where the person looks for recovery. If the person is uninsured, §§ 3114(4) and 3115(1) come into play and allocate responsibility on the basis of whether the injured person is an occupant or a nonoccupant. This interpretation is consistent with the scheme of no-fault—a system primarily designed to insure people rather than automobiles.

As to the case at bar, assuming that plaintiff is "domiciled” with the Kozloskis, the Kozloskis’ no-fault insurer, League General, is liable. The lower court’s determination that Michigan Mutual is liable was erroneous.

III. Was Plaintiff Domiciled With The Policyholder?

Having determined that League General is the responsible insurer, and if the majority is wrong in holding the claim is barred by the statute of limitations, it is still necessary to decide whether plaintiff falls within the coverage of the Kozloski policy. Michigan Mutual points to considerable deposition of testimony on the issue of whether plaintiff was domiciled with the Kozloskis within the meaning of MCL 500.3114(1); MSA 24.13114(1). But at no time was there a finding of fact on this issue, and this Court has nothing to review. Upon the remand of this case, one of the issues that must be proven for League General to be liable is that Michael Keller was a relative of one of the Kozloskis and was "domiciled” in the same household at the time of the accident. MCL 500.3114(1); MSA 24.13114(1).

Conclusion

To summarize: I disagree with the majority that the statute of limitations applies. This is not the type of claim, viz.: a claim by the policyholder for payment of damages incurred in an accident, which the statute was designed to cover. Instead it is an action to recover monies paid under a mistake in fact and is in the nature of a suit for indemnity. I further find that the trial court erred, albeit understandably in view of the seeming inconsistency of decisions by this Court, in holding that recovery should be against the insurer of the other vehicle involved. I therefore would reverse the trial court’s grant of summary judgment in favor of League General and would remand for trial. At trial, the question of domicile and the question of whether the policyholder, Jack Kozloski, in fact phoned League General and reported the accident, may be determined by the trier of fact.

       The statutory purpose of relieving the insurer and in turn the judiciary of stale claims was admittedly not satisfied in the present case. However, given the fact that the claim was honest, was investigated and the insured received only that to which he was entitled, I conclude that the instant case is not one which falls within the intent of the Legislature as set forth in § 3145.

       "Turning first to the question of whether or not the claim of Michigan Mutual would be barred by the statute of limitations as set forth in MCL 500.3145(1), the Court is of the opinion that the statute of limitations would not apply in this case. It appears from the pleadings filed herein that during the period the statute would have run Michigan Mutual had information which would have led them to believe that there was no insurance in fact in force on Plaintiff Keller. Further, that when such coverage was in fact disclosed demand was immediately thereupon made to League General for payments which may or may not have been due under the no fault provisions.”

       In the typical suit for indemnity or return of monies paid under a material mistake of fact, A sues B to recover sums A paid C under the erroneous belief induced by a mistake of fact that A was required to make such payment. Illustrative of this principle is Montgomery Ward & Co v Williams, supra. There, plaintiff paid defendant, manager of its furniture department, sickness and health benefits for injuries sustained when defendant slipped while mopping the store floor. The insurance plan provided that no benefits would be payable for any accident under which workmen’s compensation benefits would be payable. Plaintiff paid defendant $625 in disability payments and later defendant applied for and received workmen’s compensation. Upon learning of the workmen’s compensation recovery, plaintiff filed a declaration against defendant, alleging payment made by mistake of fact. The question of whether plaintiff paid under mistake of fact was submitted to the jury which found in defendant’s favor. See also Restatement of Restitution, §§ 18 and 76.

       "Sec. 3115. (1) Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
      "(a) Insurers of owners or registrants of motor vehicles involved in the accident.
      "(b) Insurers of operators of motor vehicles involved in the accident.” MCL 500.3115(1); MSA 24.13115(1). Motorcycles, being two-wheeled vehicles are expressly excluded from the mainstream of the no-fault act, MCL 500.3101(2); MSA 24.13101(2), and are specially provided for in MCL 500.3103; MSA 24.13103.”

       Examination of the transcript and file, now at the Michigan Supreme Court on leave granted, discloses that plaintiff testified he owned no car, lived alone and was not covered by insurance other than the motorcycle liability policy. For this reason the Court’s reliance on Underhill in Hill v Aetna Life & Casualty Co, 79 Mich App 725, 729; 263 NW2d 27 (1977), is misplaced.

       "Sec. 3105. (1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1); MSA 24.13105(1).

         "Sec. 3114. (1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to the accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.” MCL 500.3114(1); MSA 24.13114(1).

       “Sec. 3105. (1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter,”

       This appears to be the interpretation followed by the Porter dissent.

       "(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
      "(a) The insurer of the owner or registrant of the vehicle occupied.
      "(b) The insurer of the operator of the vehicle occupied.” MCL 500.3114(4); MSA 24.13114(4).

       Section 3105(1) is the only other section that is close to being an operative section. But this section really deals with the scope of a no-fault policy, and when subsection (1) is read with the rest of § 3105, this purpose is even more apparent.

       This is understandable since the lower court determined that Michigan Mutual rather than League General was liable, and hence domicile was not an issue.