author: Per Curiam.

text:
    FRANCISCO v PARCHMENT MEDICAL CLINIC P.C.
    Docket No. 77-2468.
    Submitted June 5, 1978, at Grand Rapids.
    Decided October 18, 1978.
    Leave to appeal applied for.
    Plaintiffs, Ethel and Merton Francisco, filed suit in Kalamazoo Circuit Court for damages arising out of the alleged malpractice and breach of contract to cure by Drs. Hoekstra and ■ Hammer, employees of defendant Parchment Medical Clinic. Dr. Hoekstra testified that Mrs. Francisco agreed to removal of her breasts because of widespread fibrocystic disease. She contradicted this and stated that the reason she consented to the operation was because she was told by the doctors that she in fact had cancer. Upon removal, the breasts were found to be noncancerous. Donald T. Anderson, J., granted a directed verdict for defendant on the ground that plaintiffs failed to establish any standard of care applicable to their cause of action. Plaintiffs appeal. The questions on appeal are: (1) whether plaintiffs established a standard of care for the treatment of fibrocystic disease, and (2) whether plaintiffs established a standard of care applicable to the treatment of cancer. Held:

    1. The standard of care applicable to a general surgeon is the standard of professional competence of similar physicians in the community. Dr. Hammer qualified as a general surgeon of the community and there is no showing of a violation of the established standard of care for the treatment of fibrocystic disease. The directed verdict insofar as it barred recovery for the alleged malpractice in regard to the treatment of fibrocystic disease was proper.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 886.
    [2] 31 Am Jur 2d, Expert and Opinion Evidence § 3.
    [3] 31 Am Jur 2d, Expert and Opinion Evidence § 26.
    [4] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 119.
    Physicians and surgeons: standard of skill and care required of specialist. 21 ALR3d 953.
    [5, 7, 8] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 207.
    Malpractice testimony: competency of physician or surgeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality. 37 ALR3d 420.
    [6] 5 Am Jur 2d, Appeal and Error § 881.

      2. There was sufficient evidence to establish the standard of care applicable to the treatment of suspected cancer of the breast. A jury can believe or disbelieve testimony adduced at trial. If the jury believed that Mrs. Francisco submitted to the breast removal operation upon the representation that she had cancer, then they could have found that the medical clinic breached its duty of care in not following established medical procedures. The grant of a directed verdict under these circumstances constitutes error.
    Reversed and remanded.
    1. Appeal and Error — Motions—Directed Verdict — Evidence.
    The Court of Appeals will view the evidence presented in the light most favorable to the nonmoving party when reviewing a trial court’s order granting a party’s motion for a directed verdict.
    2. Evidence — Expert Testimony — Judge’s Discretion — Abuse of
    Discretion — Appeal and Error.
    Admission or exclusion of expert testimony is within a trial court’s discretion and the trial court’s decision will not be disturbed unless it is clearly erroneous.
    3. Witnesses — Expert Witnesses — Competence.
    The parties offering the testimony of an expert witness must show that the witness possesses the necessary knowledge or skill to enable him to competently give such testimony.
    4. Physicians and Surgeons — General Practitioners — Specialists —Professional Competence — Medical Malpractice.
    General medical practitioners, including general surgeons, are held to the standard of professional competence of similar physicians in their community or one similar thereto.
    5. Physicians and Surgeons — Standard of Care — Expert Witness Testimony — Admissibility—Tests—Medical Malpractice.
    The testimony of an expert witness as to the standard of care applicable to a general surgeon must first be qualified by a showing of knowledge of the local medical community and unfamiliarity with this medical community makes any testimony in regard to the applicable standard of care inadmissible.
    6. Physicians and Surgeons — General Surgeons — Specialists— Judge’s Discretion — Abuse of Discretion — Medical Malpractice — Appeal and Error.
    A ruling that a physician is a general surgeon and not a specialist is within the discretion of the trial court and will not be reversed unless clearly erroneous.
    7. Physicians and Surgeons — General Surgeons — Standard of Care — Professional Competence — Standards—Medical Malpractice.
    Generally, the standard of care applicable to a general surgeon is held to the standard of professional competence of similar physicians in the community; however, cases may arise where the treatment in question (including the medical standard of care) is uniform throughout the United States so as to allow testimony of an expert who is unfamiliar with the local community.
    8. Physicians and Surgeons — Standard of Care — Expert Witnesses — Well Known Ailment — Admissibility—Medical Malpractice.
    The expert testimony of a physician, unfamiliar with the local medical community, is inadmissible unless a foundation is laid showing that the treatment of the subject ailment is well known and uniform throughout the United States.

      Sloan, Zarbock & Risdon, for plaintiff.

      Bennett, Palmer, Lewis, LaParl, Hollander & Stephens, P.C., for defendant.
    Before: Danhof, P.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Per Curiam.

Plaintiffs filed suit in circuit court in Kalamazoo County on June 21, 1974, claiming damages arising out of the alleged medical malpractice and breach of contract to cure by Dr. George Hoekstra and Dr. John Hammer, employees of the defendant. Jury trial commenced on June 1, 1977, and plaintiffs closed their proofs on June 15, 1977. At that time defendant moved for a directed verdict claiming that the plaintiffs had failed to establish any standard of care to which the defendant could be held. The trial court granted the defendant’s motion and the plaintiffs appeal by right. GCR 1963, 806.1.

Plaintiff Ethel Francisco had a long history of prior breast problems including pain in the breast area. While plaintiff Ethel Francisco was under the care and treatment of doctors in Sturgis, Michigan, in 1963, a suspicious lesion was noted in her left breast and she was advised at that time that her breast might be cancerous. A biopsy was performed which disclosed no cancer, but Mrs. Francisco was diagnosed as having fibrocystic disease in both breasts.

Mrs. Francisco came under the care of Dr. Hoekstra on January 26, 1971, at which time she was complaining of severe pain in the left breast together with swelling and blueness in her left upper arm. At that time Dr. Hoekstra made a determination that she was in the healing stage of left mastitis with secondary axillary adenolymphangitis and pain medication was prescribed.

On four separate occasions from February 2, 1971, to February 8, 1971, Mrs. Francisco returned to Dr. Hoekstra complaining of severe pain in the chest and breast area. On February 8, 1971, Mrs. Francisco was admitted to Borgess Hospital for a mammogram study. The results of the study showed a suspicious nodule in the upper outer quadrant of the right breast together with widespread fibrocystic changes within the glandular tissues of both breasts.

Dr. Hoekstra discussed the results with plaintiff and indicated a possibility of cancer. Dr. Hoekstra also indicated that the mammogram study confirmed the presence of widespread fibrocystic disease in both breasts.

Dr. Hoekstra testified that the plaintiff agreed to the removal of her breast because of the widespread fibrocystic disease. Mrs. Francisco directly contradicted this and stated that the reason she consented to the operation was that she was told by Dr. Hoekstra and Dr. Hammer that she in fact had cancer.

Dr. Hammer testified that Mrs. Francisco agreed to a biopsy of the suspicious nodule and then after a detailed discussion agreed to have both her breasts removed because of the fibrocystic disease. Upon removal the breasts were found to be noncancerous.

The trial court in granting the directed verdict in favor of the defendant held that the plaintiffs failed to establish any standard of care applicable to their cause of action. On appeal from the granting of a motion for directed verdict, this Court will view the evidence presented in the light most favorable to the nonmoving party. Since the evidence is contradictory as to whether the operation was performed for the treatment of fibrocystic disease or for the treatment of cancer, we must determine whether a standard of care was established for either treatment.

I. Whether the plaintiffs established a standard of care for the treatment of ñbrocystic disease?

The thrust of the plaintiffs’ argument under this issue concerns the trials court’s ruling that two experts called to testify as to the applicable standard of care were unfamiliar with the locality of Kalamazoo and were thus not qualified to testify. It is within the trial court’s discretion to admit or exclude expert testimony, and the trial court’s decision will not be disturbed unless clearly erroneous. Johnson v Detroit, 79 Mich App 295; 261 NW2d 295 (1977), Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973). It is incumbent upon the parties offering an expert witness to show that the witness possesses the necessary knowledge or skill to enable him to competently give such testimony. Siirila v Barrios; 398 Mich 576; 248 NW2d 171 (1976). In Michigan, general practitioners, including general surgeons, are held to the standard of professional competence of similar physicians in their community or one similar thereto. Siirila v Barrios, supra; Abbe v Woman’s Hospital Assoc, 35 Mich App 429; 192 NW2d 691 (1971). See MCL 600.2912(1); MSA 27A.2912(1). Therefore, an expert’s testimony as to the standard of care applicable to a general surgeon must first be qualified by a showing of knowledge of the medical community in question.

In the present case the trial court ruled that the defendant’s employees were general practitioners and general surgeons. The proffered expert witnesses testified that they were unfamiliar with the medical community of Kalamazoo, and the trial court held any testimony by them in regard to the applicable standard of care was inadmissible.

The plaintiffs assail the trial court’s ruling on two grounds. First, the plaintiffs argue the trial court erred in ruling that Dr. Hammer was a general surgeon, and second, the plaintiffs argue that the recent case of LeBlanc v Lentini, 82 Mich App 5; 266 NW2d 643 (1978), warrants the application of a national standard in the case at bar.

The ruling that Dr. Hammer is a general surgeon and thus a general practitioner is within the discretion of the trial court and will not be reversed unless clearly erroneous. In reviewing the testimony adduced at trial it is found that Dr. Hammer considered himself a general surgeon and not a specialist. Dr. Hammer at one time operated on all parts of the body, but with the increasing number of specialists in the community, his practice had narrowed to the abdomen, breasts, thyroid, and the extremities. There is no showing that Dr. Hammer held himself out as a specialist in the treatment of some particular organ or disease, and thus, it cannot be said that the trial court’s ruling was clearly erroneous. See Anno: Physicians and Surgeons: Standard of skill and care required of specialist, 21 ALR3d 953. Therefore, the plaintiffs argument in this regard is without merit.

We next direct our attention to the question of whether Lentini imposes the application of a national medical standard to the case at bar. In Lentini, this Court held that although the locality standard is applicable in Michigan, cases may arise where the treatment in question (including the medical standard of care) is uniform throughout the United States so as to allow testimony of an expert who is unfamiliar with the locality in question. It must be noted that in Lentini the necessary foundation was laid showing that the treatment of the ailment in question (hiatus hernia) was well known and uniform throughout the United States. In the present case no such foundation was laid concerning the treatment of fibrocystic disease. Therefore, the national standard contemplated in Lentini is inapplicable, and the trial court’s ruling that the proffered experts’ testimony was inadmissible is upheld.

We hold that the granting of the directed verdict, insofar as it barred recovery for the alleged malpractice in regard to the treatment of fibrocystic disease, was proper.

II. Whether the plaintiffs established a standard of care applicable to the treatment of cancer?

It must again be noted that Mrs. Francisco testified that her consent to the mastectomy was based upon the representation that she in fact had cancer. For the purposes of this appeal we take this testimony as true, and our review is limited to the question of whether a standard of care concerning the treatment of breast cancer was established.

In reviewing the record it is found that Dr. Franklin Cox, the Borgess Hospital pathologist at the time of Mrs. Francisco’s treatment, testified that the normal procedure where there is a suspicion of cancer is to remove a specimen of tissue which may be involved.

Dr. Hammer initially testified that the suspicious nodule in the right breast was removed and sent to the laboratory before the breast was removed. Upon reviewing his records Dr. Hammer stated that the entire breast was removed and sent to the laboratory for tests, reason being that Mrs. Francisco agreed before surgery to have her breasts removed due to the fibrocystic disease.

Viewing this testimony in the light most favorable to the plaintiffs we find that there was sufficient evidence to establish the standard of care applicable to the treatment of suspected cancer of the breast. The evidence shows that the proper procedure is to perform a biopsy on a very small area of the suspected tissue. Tests for the detection of cancer are then performed on that small excised area.

In the present case the entire breasts were removed and sent to the laboratory. It is within the province of the jury to believe or disbelieve testimony adduced at trial. If the jury believed that Mrs. Francisco submitted to the operation solely upon the representation that she had can-, cer, then they could have found that the defendant breached its duty of care. Therefore, we hold that the granting of a directed verdict in regard to the plaintiffs’ claim of mistreatment for the suspected cancerous condition was error.

We have reviewed the plaintiffs’ other contentions of error and find them to be without merit.

That portion of the directed verdict insofar as it bars recovery for the alleged malpractice concerning the treatment of fibrocystic disease is affirmed. That portion of the directed verdict insofar as it bars recovery for the alleged malpractice concerning the mistreatment of suspected breast cancer is reversed.

The case is remanded for new trial with the only issues to be litigated being (1) whether Mrs. Francisco’s consent was based solely upon the representation that she in fact had cancer, (2) and if so, then whether the treatment administered in the present case constituted a breach of the applicable standard of care.

We must point out that upon retrial the defendant is not barred from asserting as a defense that the surgery was performed for the treatment of fibrocystic disease.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    DAVIDSON v WAYNE COUNTY BOARD OF ROAD COMMISSIONERS
    Docket No. 77-4825.
    Submitted June 14, 1978, at Detroit.
    Decided October 18, 1978.
    Clifford Davidson, Richard Nieman, and Grady Gardner, are independent taxi owner-drivers who operate at Detroit Metropolitan Wayne County Airport. The airport facility is operated and managed for public use by the Wayne County Board of Road Commissioners, a quasi-municipal body. One of the functions of the board is to issue permits authorizing the operation of taxis at the airport. Among the conditions imposed on the issuance of these permits is a requirement that all owner-drivers provide proof that they are covered by a policy of worker’s disability compensation insurance.
    The above-named taxi owner-drivers filed suit against the board seeking to restrain the defendant from requiring proof of worker’s disability compensation insurance and sought a declaratory judgment that the requirement was unreasonable, discriminatory and unconstitutional. Wayne Circuit Court, Irwin Burdick, J., entered a judgment for the plaintiffs and members of their class, but also prohibited the plaintiffs and members of their class from allowing their vehicles to be used by any other persons for airport taxis unless they provided the defendant with a certificate of worker’s disability insurance covering such drivers. The defendant appeals. Held:

    The plaintiffs and members of their class are not employees of contractors or subcontractors, but are contractors or subcontractors for purposes of the Worker’s Disability Compensation Act. Therefore, the Worker’s Disability Compensation Act does not impose any worker’s compensation liability on defendant with regard to the instant plaintiffs and members of their class unless they employ other persons to drive their taxis.
    Affirmed.
    References for Points in Headnotes
    [1, 4] 81 Am Jur 2d, Workmen’s Compensation § 153.
    [2] 81 Am Jur 2d, Workmen’s Compensation § 169.
    [3] 81 Am Jur 2d, Workmen’s Compensation § 171.

      1. Workmen’s Compensation — Benefits—Employee-Employer Relationship — Contract of Employment — Statutes.
    An employee-employer relationship established by a contract of employment must be shown to exist before benefits or rights under the Worker’s Disability Compensation Act can be claimed (MCL 418.151, 418.161; MSA 17.237[151], 17.237[161]).
    2. Workmen’s Compensation — Economic Reality Test — Employment Situation — Factors.
    The economic reality test has been adopted by the Michigan courts to discern an employment situation in worker’s disability compensation cases; the relevant factors to be used under this test are: (1) control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire, and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.
    3. Workmen’s Compensation — Principal—Workman—Contractors —Subcontractors—Liability of Principal — Statutes.
    The potential liability of an employer (principal) subject to the Worker’s Disability Compensation Act, extends only to a "workman”; a contractor or a subcontractor is not a "workman” within the meaning of the act, and, therefore, a principal is not liable for the payment of benefits to a contractor or subcontractor who may be injured while performing for the principal as a . contractor or subcontractor (MCL 418.171; MSA 17.237[171]).
    4. Workmen’s Compensation — Self-Employed Individual — Benefits —Contract of Employment.
    A self-employed individual cannot claim benefits under the Worker’s Disability Compensation Act; a contract of employment is a condition precedent to recovery under the act.

      Francis D. Ross, for plaintiffs.

      John P. Cushman, General Counsel, and Donald Brown, for defendant.
    Before: N. J. Kaufman, P.J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

Plaintiffs in the instant action are independent taxi owner-drivers operating at Detroit Metropolitan Wayne County Airport. Defendant, the Board of Wayne County Road Commissioners, is a quasi-municipal body charged with operating and managing the airport facility for public use. Part of this function includes issuing permits authorizing plaintiffs to operate their taxis at the airport.

Defendant has imposed several conditions on the issuance of these permits. Plaintiffs are required to pay a monthly fee to defendant, to purchase bond plates for their vehicles and to obtain operators’ licenses for the airport grounds. In addition, defendant requires three annual inspections of each vehicle. The drivers are also subject to certain other rules and regulations pertaining to taxi meters, drivers’ conduct, handling of lost property, cruising and advertising on the vehicles.

Since 1973, the board has required all owner-drivers to provide proof that they are covered by a policy of worker’s disability insurance. Rates for worker’s disability insurance have increased annually. Plaintiffs brought suit alleging that the cost of the insurance is so economically burdensome that defendant’s requirement is unconstitutionally destructive and confiscatory of business. Plaintiffs’ suit sought to restrain defendant from requiring proof of worker’s disability insurance and prayed for a declaratory judgment finding the requirement to be unreasonable, discriminatory and unconstitutional.

The trial judge entered an order of judgment granting plaintiffs the relief they requested. The trial judge found that there was no employee-employer relationship between the parties and that, therefore, the requirement of insurance was an unreasonable, arbitrary and unconstitutional limitation upon plaintiffs and members of their class. He enjoined defendant from requiring proof of worker’s disability insurance as a condition precedent to granting a license to plaintiffs and members of their class. However, he also prohibited plaintiffs and members of their class from allowing their vehicles to be used by any other persons for airport taxis unless they provide defendant with a certificate of worker’s disability insurance covering such drivers.

Defendant appeals. It argues that the proof of worker’s disability insurance is necessary to protect it from liability under the worker’s compensation act in the event one of the owner-drivers incurs an injury while working.

Before benefits or rights under the Worker’s Disability Compensation Act can be claimed, an employee-employer relationship established by a contract of employment must be shown to exist. The act is predicated on the existence of such a relationship. Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211; 180 NW2d 798 (1970). See also MCL 418.151, 418.161; MSA 17.237(151), 17.237(161). Therefore, our inquiry must begin with a determination of whether plaintiffs and defendant stand in an employee-employer relationship. Although both parties agree with the trial judge’s determination that plaintiffs are not employees of defendant, we find it necessary to reconsider this point because a proper determination is essential to the resolution of this case.

In Smith v Martindale, 81 Mich App 682, 686-687; 266 NW2d 49 (1978), this Court set forth the test for determining whether an employment relationship exists:

"The economic reality test has been adopted by the Michigan courts to discern an employment situation. Goodchild v Erickson, 375 Mich 289, 293; 134 NW2d 191 (1965), Cronk v Chevrolet Local 659, 32 Mich App 394, 398; 189 NW2d 16 (1971), lv den, 385 Mich 784 (1971), McKissic v Bodine, 42 Mich App 203, 205-208; 201 NW2d 333 (1972), lv den, 388 Mich 780 (1972). Under the economic reality test, the Michigan Supreme Court in Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976), listed relevant factors to be used to discern an employment situation:
" '(1) [C]ontrol of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.’ ”

The facts in the instant case indicate that the defendant is enabled under the laws and statutes of Michigan to operate and manage the airport facility. As a part of its nonprofit function, and for the benefit of the public which uses the facility, defendant permits the plaintiffs to operate their self-owned taxicab businesses at the airport. Plaintiffs are neither hired nor fired by the defendant. The defendant simply issues a permit allowing the plaintiffs to operate on the airport grounds. Other than subjecting plaintiffs to certain regulations which are necessary for safe and orderly transportation at the airport, the defendant exercises no control over the manner in which plaintiffs carry out their businesses. Plaintiffs are paid for their services directly by their passengers, and receive no wages from the defendant.

Applying the factors of the economic reality test to these facts, we conclude, as the trial court did, that plaintiffs are not employees of the defendant.

Defendant argues that MCL 418.171; MSA 17.237(171) subjects it to liability for work incurred injuries suffered by the plaintiffs even though plaintiffs are not its employees within the meaning of the Worker’s Disability Compensation Act.

MCL 418.171; MSA 17.237(171) provides:

"Sec. 171. (1) If any employer subject to the provisions of this act, in this section referred to as the principal, contracts with any other person, in this section referred to as the contractor, who is not subject to this act or who has not complied with the provisions of section 611, and who does not become subject to this act or comply with the provisions of section 611 prior to the date of the injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and if compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. A contractor shall be deemed to include subcontractors in all cases where the principal gives permission that the work or any part thereof be performed under subcontract.
"(2) If the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor or subcontractor. The employee shall not be entitled to recover at common law against the contractor for any damages arising from such injury if he takes compensation from such principal. The principal, in case he pays compensation to the employee of such contractor, may recover the amount so paid in an action against such contractor.”

Under this section, if a principal, i.e., an employer subject to the act, contracts with another person (contractor), who is not subject to the act or who has not secured worker’s compensation coverage, the principal is required to pay worker’s compensation benefits to any injured "workman” who files a claim for injuries incurred while performing work under the principal-contractor agreement. Under subsection (2), the principal is entitled to indemnification from the contractor for any amounts paid to the injured worker.

Defendant views itself as a principal within the meaning of this section. It characterizes plaintiffs as contractors or subcontractors. Defendant argues that to protect itself from worker’s compensation liability, it must make sure that the persons to whom it issues licenses have worker’s compensation policies either in their own names or in the names of their employees.

Because this appeal does not concern employees of the owner-operators, we need only determine whether defendant could incur any worker’s compensation liability for injuries to plaintiffs or members of their class.

Under MCL 418.171; MSA 17.237(171), a principal’s potential liability extends only to a "workman”. Defendant’s proposed construction would render a "contractor” or "subcontractor” a "workman” within the meaning of this section. Under that construction of the section, if one of the instant plaintiffs did not have worker’s disability insurance and that plaintiff were injured while working at the airport, defendant would, on the one hand, be required to pay worker’s compensation benefits to the plaintiff (in his role as "workman”) and, on the other hand, be able to recover those benefits in an indemnity action from the same plaintiff (in his role as "contractor” or "subcontractor”). The Legislature could not have intended this construction because it renders the section meaningless. See Brown v Dep’t of State, 45 Mich App 322, 326; 206 NW2d 481 (1973).

In addition, defendant’s proposed construction does not comport with the legislative intent underlying the section. The legislative intent in enacting this section was to protect the employees of contractors and subcontractors, and to insure that these employees recover worker’s compensation benefits where their immediate employer fails to obtain adequate insurance or to otherwise secure funds for the payment of such benefits. See DeWitt v Grand Rapids Fuel Co, 346 Mich 209, 214; 77 NW2d 759 (1956), Woody v American Tank Co, 49 Mich App 217, 230; 211 NW2d 666 (1973). Plaintiffs are not employees of contractors or subcontractors; they are the contractors or subcontractors within the meaning of the section. Therefore, they are outside of the protection afforded by this section.

Finally, defendant’s proposed construction would radically change Michigan’s worker’s compensation law. Plaintiffs are self-employed; they are both employer and employee. This Court has held that, without conclusive, unambiguous direction from the Legislature, a self-employed individual cannot claim benefits under the Worker’s Disability Compensation Act. A contract of employment is a condition precedent to recovery under the act. Lee v J H Lee & Son, 72 Mich App 257, 264-265; 249 NW2d 380 (1976). See also Scott v Alsar Co, 336 Mich 532, 537-539, 58 NW2d 910 (1953), Slessor v Board of Education of Kalamazoo, 256 Mich 389, 392; 240 NW 13 (1932). MCL 418.171; MSA 17.237(171) does not indicate a legislative intent to depart from this policy.

We affirm the trial court’s ruling that MCL 418.171; MSA 17.237(171) does not impose any worker’s compensation liability on defendant as far as the instant plaintiffs and members of their class are concerned.

We now turn to the question of whether the trial court erred in enjoining defendant from requiring plaintiffs and members of their class to obtain worker’s disability insurance. Defendant has stated that in the absence of any worker’s compensation liability to plaintiffs, defendant would not require plaintiffs to carry worker’s compensation insurance. Therefore, an extended discussion on this issue is not necessary. We hold that the trial court properly enjoined defendant from requiring plaintiffs to prove they had obtained worker’s compensation benefits. See Devereaux v Twp Board of Genesse Twp, 211 Mich 38, 43; 177 NW 967 (1920), People v Grant, 157 Mich 24, 27; 121 NW 300 (1909).

The decision of the trial court is affirmed. No costs, the construction of a statute being involved.

Beasley, J., concurs in result.


text:
    PEOPLE v SCHUSTER
    Docket No. 77-4872.
    Submitted June 6, 1978, at Grand Rapids.
    Decided October 18, 1978.
    Thomas Schuster was convicted, on his plea of guilty, of receiving or concealing stolen property, in Iosco Circuit Court, Allan C. Miller, J. The plea was accepted as part of a plea bargain in which an additional charge of unlawfully taking possession of and driving away a motor vehicle, arising from the same transaction, was dropped by the prosecutor. Defendant appeals. Held:

    There was no factual basis to support the conviction, because the statute which prohibits buying, receiving, or aiding in the concealment of stolen property does not encompass the thief himself. The prosecutor is not prevented from reinstating the charge of unlawfully taking possession of and driving away a motor vehicle, however, because that offense is not a higher offense than the offense of receiving or concealing stolen property.
    Reversed and remanded.
    1. Criminal Law — Statutes—Buying, Receiving or Concealing Stolen Goods.
    The statute which prohibits buying, receiving, or aiding in the concealment of stolen goods does not encompass the thief himself (MCL 750.535; MSA 28.803).
    2. Criminal Law — Plea of Guilty — Higher Offense — Same Transaction.
    The state may not charge a defendant with a higher offense, arising out of the same transaction, after a guilty plea has been accepted.
    3. Criminal Law — Unlawful Possession of Motor Vehicle — Receiving and Concealing Stolen Goods — Statutes.
    The offense of unlawfully taking possession of and driving away a motor vehicle is not a higher offense than receiving and concealing stolen property (MCL 750.413, 750.535; MSA 28.645, 28.803).

      References for Points in Headnotes
    [1, 3] 66 Am Jur 2d, Receiving Stolen Property § 11.
    [2] 21 Am Jur 2d, Criminal Law § 496.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stephen H. Naegele, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, by Keith D. Roberts, Assistant Attorney General), for the people.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Per Curiam.

The defendant, Thomas Schuster, was originally charged in a two-count information with receiving or concealing stolen property, MCL 750.535; MSA 28.803, and unlawfully taking possession of and driving away a motor vehicle, MCL 750.413; MSA 28.645. As part of a plea bargain the prosecutor agreed to drop the latter charge if the defendant pled guilty and was in fact guilty of the receiving or concealing charge. The defendant’s plea to receiving or concealing was accepted by the trial judge, and the defendant was sentenced to 3 years, 3 months to 5 years in prison. The defendant appeals by right. GCR 1963, 806.1.

The facts adduced at the plea proceeding tended to show that the defendant himself took the automobile without any permission from the owner and drove it away with the intent to sell it.

It is readily apparent that no factual basis was established to support the defendant’s conviction of receiving qr concealing. The statute which prohibits buying, receiving, or aiding in the concealment of stolen goods does not encompass the thief himself. People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Therefore, the defendant’s conviction must be set aside.

The prosecutor is not barred from reinstating the charge of unlawfully taking possession and driving away a motor vehicle under People v McMiller, 389 Mich 425; 208 NW2d 451 (1973). McMiller prohibits the state from charging the defendant with a higher offense after a guilty plea, arising out of the same transaction, has been accepted. In the present case the crimes of receiving or concealing stolen property and unlawfully taking possession and driving away a motor vehicle are both punishable by a five year maximum prison sentence. Therefore, the latter charge is not a higher offense, and the prosecutor may reinstate it if he feels that the ends of justice will be served thereby.

Reversed and remanded for proceedings not inconsistent with this opinion.


text:
    PEOPLE v PEREZ
    Docket No. 30084.
    Submitted April 6, 1978, at Lansing.
    Decided October 4, 1978.
    Miguel A. Perez was convicted of two counts of criminal sexual conduct in the first degree, Ingham Circuit Court, Ray C. Hotchkiss, J. The defendant appeals, alleging that he was denied effective assistance of counsel and that he was prejudiced by the prosecutor’s cross-examination of the defendant about the defendant’s drug usage. Held:

    1. The line of questioning initiated by the defendant’s attorney, to which the defendant objects, appears to be a reasonable choice of trial strategy for a competent criminal attorney. Therefore, the defendant was not denied effective assistance of counsel.
    2. The prosecutor’s cross-examination about the defendant’s drug usage was proper because (1) the victim’s consent was in issue and the defendant’s use of drugs on the day in question was material to his ability to judge consent, and (2) the defendant first raised the issue of his drug usage.
    Affirmed.
    1. Criminal Law — Assistance of Counsel — -Effective Assistance— Standard.
    The standard for determining whether a defendant had effective assistance of counsel in a criminal trial is that defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 315, 319-321.
    Incompetency of counsel chosen by accused as affecting validity of conviction. 74 ALR2d 1390.
    [2, 3] 29 Am Jur 2d, Evidence §§ 251-254.
    65 Am Jur 2d, Rape § 7.
    [2] 81 Am Jur 2d, Witnesses §§ 477 et seq., 516.
    75 Am Jur 2d, Trial §§ 576-578, 919-922.

      2. Criminal Law — Criminal Sexual Conduct — Victim’s Consent— Defendant’s Drug Usage — Cross-Examination.
    A prosecutor in a first-degree criminal sexual conduct case was entitled to pursue, on cross-examination of a defendant, the subject of the defendant’s admitted drug usage where, because the issue of the victim’s consent was crucial, the issue of drug usage was material to possibly show that the defendant’s ability to judge consent was impaired by his use of drugs earlier in the day and where it was the defendant who first raised the question of his drug usage.
    3. Criminal Law — Appeal and Error — Cross-Examination—Prejudicial Questions by Prosecutor — Preserving Issue — Instructions to Jury.
    There is no basis for reversing a defendant’s conviction because of a prosecutor’s allegedly prejudicial questioning of the defendant on cross-examination where a curative instruction would have eliminated any harmful effect but the defense failed to object or request a curative instruction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Counsel, for the people.

      Kulick, Smith & Kistler, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

Defendant was tried in the Ingham County Circuit Court commencing May 11, 1976, on two counts of criminal sexual conduct in the first degree, contrary to MCL 750.520(b)(1)(f); MSA 28.788(2)(l)(f). He was convicted by the jury on both counts and sentenced June 18, 1976, to two concurrent terms of 20.to 40 years in prison. He appeals of right.

Typical of cases involving alleged sexual misconduct the trial boiled down to a one-on-one confrontation, with the complaining witness testifying that defendant assaulted her when she was asleep in her apartment with her two children, and defendant testifying that the conduct was consensual. Because the jury was left with deciding which witness to believe, defendant argues that his trial counsel grossly misrepresented him by eliciting on direct examination the fact that while living in New York, the defendant had been involved in grand larceny in connection with a theft of an automobile. Appellate counsel asserts that it is now established that the charge of grand larceny resulted in a dismissal and not a conviction, and in the one-on-one situation counsel’s error denied defendant effective assistance of counsel. People v Degraffenreid, 19 Mich App 702, 709; 173 NW2d 317 (1969), Beasley v United States, 491 F2d 687, 696 (CA 6, 1974).

We are not persuaded. Trial counsel skillfully avoided asking his client whether he had been convicted, and defendant’s response was not that he had been convicted of grand larceny but that he had been involved. Trial counsel sought to paint a picture of his client as a man who had totally reformed after coming to Michigan from New York. He could best do so and still maintain a high professional standard by having his client tell the truth. Given the situation with which he was confronted, we believe this was probably the best tactic counsel could use. The most recent Supreme Court pronouncement on effective assistance of counsel appears in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). In that opinion the Court adopted the test formulated in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974):

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations.”

We have carefully reviewed the entire record, including the action of defense counsel alleged to be erroneous. We find that the line of questioning would appear to be a reasonable choice of trial strategy to a competent criminal attorney and that defense counsel’s performance satisfied the Garcia standards. We also do not believe that defendant would have a reasonably likely chance of acquittal given a new trial absent any error by counsel. People v Degraffenreid, 19 Mich App 702, 716, 718; 173 NW2d 317 (1969).

Defendant’s second claim of error concerns allegedly prejudicial cross-examination of defendant about his admitted use of drugs. Since the crucial issue was consent, the issue of drug usage was material to possibly show that defendant’s ability to judge consent was impaired by his use of drugs earlier that day. Also, it was defendant who first raised the question of drug usage and naturally the prosecutor was entitled to pursue the subject. Additionally, we find that the line of prosecutorial questioning was not so prejudicial that a curative instruction would not have eliminated any harmful effect. Therefore, in the absence of a timely defense objection and request for a curative instruction we find no basis for reversal. People v Gould; 61 Mich App 614, 625; 233 NW2d 109 (1975).

We believe that defendant’s conviction resulted from a fair trial and it is, therefore, affirmed.


text:
    PEOPLE v TUCKER
    Docket No. 77-1253.
    Submitted August 31, 1978, at Lansing.
    Decided October 4, 1978.
    Larry L. Tucker was convicted of armed robbery in the Ingham Circuit Court, Thomas L. Brown, J. Defendant appeals. Held:

    1. The on-the-scene identification of the defendant by the complaining witness without the presence of counsel was a reasonable police practice since such an on-the-scene identification is a well-recognized exception to the rule requiring counsel during a corporeal identification once a suspect is in custody.
    2. Defendant’s allegation that the identification was impermissibly suggestive is also without merit since the complainant failed to identify the other suspect who was shown to the witness in the exact same manner as the defendant. Furthermore, the defendant failed to preserve the issue since he made no pretrial motion to suppress the allegedly suggestive identification, and he did not object to the in-court identification at trial.
    3. Evidence regarding a defendant’s prior invalid convictions is inadmissible for impeachment purposes at the defendant’s trial. The erroneous admission of such evidence mandates reversal where such admission might well have influenced the outcome of the case. Reversal is not mandated here, however, since neither the threatened nor actual use of the prior convictions would have influenced the outcome of the case.
    4. The defendant’s contention that the trial court erred in sentencing him after considering a presentence report that recommended a sentence based on the defendant’s past history of illegal activities, including his prior void convictions, is not sustained since the trial judge determined from the defendant which convictions were obtained without counsel and stated that he would not consider these convictions, and furthermore, the trial judge did not follow the recommendation contained in the presentence report regarding the length of sentence.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 313, 314.
    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449.
    Accused’s right to assistance of counsel at or prior to arraignment. 5 ALR3d 1269.
    [2] 5 Am Jur 2d, Appeal and Error §§ 601, 602.
    [3-5] 29 Am Jur 2d, Evidence §§ 320, 327.
    [4] 20 Am Jur 2d, Courts § 84.
    21 Am Jur 2d, Criminal Law § 527.

      Affirmed.
    1. Constitutional Law — Criminal Law — Right to Counsel — On-the-Scene Identifications — Custody—Police Practices.
    An on-the-scene identification is a well-recognized exception to the rule requiring counsel during a corporeal identification once a suspect is in custody; such confrontations are reasonable police practices since they permit the police to immediately determine whether there is a reasonable likelihood that the suspect is connected with the crime and subject to arrest, or merely an unfortunate victim of circumstances.
    2. Constitutional Law — Criminal Law — Due Process — Right to Trial — On-the-Scene Identifications — Suggestiveness—Preserving Issues.
    A criminal defendant’s allegation that he was denied due process and the right to a fair trial by an impermissibly suggestive on-the-scene identification of him by a complaining witness is without merit where the circumstances indicate that the complaining witness identified the defendant but failed to identify the other suspect who was shown to the witness in the exact same manner as the defendant, and where the defendant failed to properly preserve the issue since he made no pretrial motion to suppress the allegedly suggestive identification and did not object to the in-court identification at trial, but instead tried to show alleged suggestiveness through vigorous cross-examination of the identifying witness and the police officers present at the on-the-scene identification.
    3. Criminal Law — Trial—Evidence—Prior Conviction Record — Invalid Convictions — Admissibility—Impeachment—Reversible Error.
    Evidence contained in a criminal defendant’s prior conviction record regarding prior invalid convictions obtained without the benefit of counsel is inadmissible for impeachment purposes at the defendant’s trial; the erroneous admission of such evidence mandates reversal if the admission of the convictions might well have influenced the outcome of the case.

      4. Appeal and Error — Criminal Law — Sentencing—Presentence Reports — Prior Void Convictions — Court Rules.
    A trial court did not err in sentencing a defendant after considering a presentence report that listed the defendant’s prior convictions, including void convictions labeled as uncounseled, where a recess was granted so that defendant and his attorney could review the presentence report, where the defendant was given an opportunity to respond to the presentence report and explain or controvert any of the representations it contained in accordance with the criminal procedure court rule regarding presentence reports, where the trial judge allowed the defendant to supply him with his own version of a presentence report which the judge read prior to sentence, where the judge determined from the defendant which prior convictions were obtained without the benefit of counsel and stated that he would not consider those convictions and where the trial judge did not follow the recommendation of the probation officer regarding the length of sentence (GCR 1963, 785.12).
    5. Criminal Law — Witnesses—Impeachment—Convictions Without Counsel.
    The threatened or actual use of remote convictions which occurred in the absence of counsel for impeachment purposes is not reversible error where the defendant did not inform the court that the convictions were in cases where defendant had no counsel and there were numerous other more recent and more probative convictions that were properly admissible for impeachment.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.

      Sandborn & O’Neill, P.C., for defendant.
    Before: Danhof, C.J., and Bronson and M. F. Cavanagh, JJ.
   Per Curiam.

Defendant was charged with armed robbery, MCL 750.529; MSA 28.797, and found guilty by a jury as charged. He was sentenced on February 28, 1977, to a term of 20 to 40 years in prison and appeals as of right.

Defendant first contends that the on-the-scene identification of him by the complaining witness was improper because it occurred in the absence of counsel and was impermissibly suggestive.

An on-the-scene identification is a well-recognized exception to the rule requiring counsel during a corporeal identification once a suspect is in custody. People v Curtis Williams, 57 Mich App 612; 226 NW2d 584 (1975). The rationale behind the exception is that such confrontations are reasonable police practices since they permit the police to immediately determine whether there is a reasonable likelihood that the suspect is connected with the crime and subject to arrest, or merely an unfortunate victim of circumstance. Defendant’s contention that counsel was required is unfounded.

Defendant’s second allegation that the identification was impermissibly suggestive is also without merit. This argument is totally undermined by the fact that although the witness identified defendant, he failed to identify the other suspect who was shown to the witness in the exact same manner as defendant. Defendant also failed to properly preserve this issue as he made no pretrial motion to suppress the allegedly suggestive identification, nor did he object to the in-court identification at trial. People v Curtis Williams, supra. Instead, he chose to try and show the alleged suggestiveness through vigorous cross-examination of the identifying witness and the police officers present at the on-the-scene identification. Under these circumstances "defendant was neither denied due process nor his right to a fair trial”. People v Johnson, 59 Mich App 187, 190; 229 NW2d 372 (1975).

Defendant next contends that the trial court erred in refusing to suppress his prior conviction record. At trial, defendant testified in camera that he would not take the witness stand if the prosecutor was permitted to go into his past record. The trial judge properly exercised his discretion under People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and ruled that seven of defendant’s nine prior convictions could be used by the prosecutor for impeachment purposes. Defendant chose not to testify. It was not until after trial that defendant brought to the attention of the trial court, in a motion for new trial, that two of his prior convictions were invalid because they were obtained without benefit of counsel. Thus, under Loper v Beto, 405 US 473; 92 S Ct 1014; 31 L Ed 2d 374 (1972), they were inadmissible for impeachment purposes and reversal would be mandated if the admission of the convictions "might well have influenced the outcome of the case”. 405 US at 480.

After a careful review of the record, we conclude that reversal is not necessary because neither the threatened nor actual use of the prior convictions would have influenced the outcome of the case. Even if the two void prior convictions had been suppressed, the prosecutor would still have been able to impeach defendant with five valid and more recent larceny related convictions. Since defendant testified that he would not take the witness stand in his own behalf if the prosecutor were permitted to go into his prior record, it is unlikely that defendant would have taken the stand even if the two invalid convictions were suppressed as five valid admissible prior convictions still remained. Furthermore, if defendant had testified at trial and had been impeached by all seven of the prior convictions, the use of the five valid larceny related convictions would have so undermined defendant’s credibility that the introduction of the two more remote invalid prior convictions would not have influenced the outcome of the case. People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Therefore, we decline to reverse for a new trial.

Finally, defendant asserts that he should be resentenced by a different trial judge because his presentence report listed his invalid prior convictions and recommended a sentence of 60 to 100 years based on "this offender’s extensive past history of illegal activities”.

In United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), the Supreme Court remanded for resentencing where the trial judge explicitly considered prior convictions which had been obtained in violation of the right to counsel where it appeared that the sentence might have been different if the sentencing judge had known the prior convictions were invalid.

In the instant case, the presentence report labeled the void convictions as "uncounseled”. A recess was granted so that defendant and his attorney could review the presentence report. The trial judge gave the defendant an opportunity to respond to the presentence report and explain or controvert any of the representations it contained in accordance with GCR 1963, 785.12. The trial judge also allowed the defendant to supply him with his own version of a presentence report which the judge read before coming into court. The trial judge had a discussion with the defendant to determine which prior convictions were obtained without counsel, and stated that he would not consider these "uncounseled” convictions. Furthermore, the trial judge did not follow the recommendation of the probation officer regarding the length of sentence:

"The court does agree with your attorney and perhaps with you, also, that the recommendation of the Probation Agent is too extreme. It is possible that the officer, the Probation Agent’s recommendations are because of his misunderstanding of the prior alleged illegal activities.
"The court had indicated to you that those particular matters are not being considered by the court. Only those matters in which you were represented and, of course, the instant case.”

We conclude there was no violation of Tucker.

Affirmed.


text:
    SANTILLANES v BANKS
    Docket No. 26884.
    Submitted March 7, 1977, at Lansing.
    Decided May 20, 1977.
    Valerie Santillanes was injured when the automobile she was driving was struck by one owned and operated by a resident of Illinois. She brought an action against Frank Banks, the owner and driver of the Illinois car, Kenilworth Insurance Company, his insurer, the Secretary of State and Detroit Automobile Inter-Insurance Exchange, the insurer of the car which plaintiff was driving, for damages for injuries sustained in the automobile accident. A judgment was entered in the Cass Circuit Court, James E. Hoff, J., declaring that plaintiff was entitled to coverage under the uninsured motorist provision of the insurance policy issued by Detroit Automobile Inter-Insurance Exchange. Defendant Detroit Automobile Inter-Insurance Exchange appeals. Held:

    The vehicle which injured the plaintiff was an uninsured motor vehicle since the amount of bodily injury insurance carried by the vehicle did not meet the requirements of the motor vehicle responsibility law of this state, even though the vehicle was satisfactorily insured in accordance with the statutory requirements of the state where the owner-operator of the vehicle was a resident. Detroit Automobile Inter-Insurance Exchange is liable under the uninsured motorist coverage of the policy applying to the vehicle the plaintiff was driving and is not entitled to a set-off for other liability coverage for medical payments.
    Affirmed.
    1. Automobiles — Insurance—Uninsured Motor Vehicles — Definitions — Statutes.
    An "uninsured motor vehicle” means a motor vehicle as to which there is not in force a liability policy meeting the requirements of the motor vehicle responsibility law of this state; a foreign vehicle insured under a policy of insurance to the extent required by the foreign state, but not affording the minimum liability coverage under Michigan law, is an uninsured vehicle under the Michigan Vehicle Code. (MCL 257.1102[d]; MSA 9.2802[d]).

      References for Points in Headnotes
    [1-3] 7 Am Jur 2d, Automobile Insurance § 136.
    What constitutes an "uninsured” or "unknown” vehicle or motorist, within uninsured motorist coverage. 26 ALR3d 883.
    [2, 3] 7 Am Jur 2d, Automobile Insurance §§ 135,135.5.

      2. Automobiles — Insurance—Uninsured Motor Vehicles — Bodily Injury — Set-Offs—Statutes.
    An insurer which is liable to its insured under the uninsured motorist coverage of an automobile insurance policy issued by the insurer is not entitled to a set-off in the amount of liability coverage afforded by an insurance policy covering the vehicle which injured the insured where the vehicle which injured the insured carried the statutory limit of liability coverage for bodily injury required in the state where the vehicle’s owner and operator was a resident, where the insurer of the vehicle causing the insured’s injuries paid its policy limits to the insured after the judgment, and where the vehicle which injured the insured was an uninsured motor vehicle as defined by the Michigan Vehicle Code (MCL 257.1102[d]; MSA 9.2802[d]).
    3. Automobiles — Insurance—Uninsured Motor Vehicles — Medical Payments — Set-Offs—Statutes.
    An insurer which is liable to its insured under the uninsured motorist coverage of an automobile insurance policy issued by the insurer is not entitled to a set-off in the amount of medical payments it made to its insured where the vehicle which injured the insured carried the amount of bodily injury insurance required by the state where the vehicle’s owner and operator was a resident, and where the vehicle which injured the insured was an uninsured motor vehicle as defined by the Michigan Vehicle Code (MCL 257.1102[d]; MSA 9.2802[d]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Carl K. Carlsen, Assistants Attorney General, for defendant-appellee Secretary of State.

      John E. Dewane, for defendant-appellant DAIIE.

      Keller, Keller & Creager, for plaintiff-appellee.

      Before: Quinn, P.J., and Bronson and M. J. Kelly, JJ.
   Per Curiam.

Detroit Automobile Inter-Insurance Exchange (hereinafter defendant) appeals from an amended declaratory judgment which entitled plaintiff to coverage under the uninsured motorist provision of an insurance policy issued by defendant. The form of the policy had been approved by the Commissioner of Insurance.

Factually, plaintiff was injured when the automobile she was driving on M-60 in Cass County, Michigan was struck by one owned and operated by Banks, a resident of Illinois. The automobile plaintiff was driving was owned by her father who was insured with defendant. The uninsured motorist provision involved provided coverage of $20,000 as provided by law. Banks was insured by an Illinois insurance company not authorized to do business in Michigan. His policy had a $10,000 limit of liability for bodily injury, and this satisfied Illinois statutory requirements.

In her personal injury action against Banks, plaintiff recovered $60,000 by jury verdict and judgment thereon. Banks’ insurance company paid its policy limits on the judgment. Under its medical coverage, defendant paid plaintiff certain medical benefits.

On appeal, defendant makes the following arguments:

"I. An Illinois automobile involved in an accident in Michigan while insured under a policy of insurance affording liability coverage to the extent required by the Illinois financial responsibility laws, but not affording liability coverage to the extent required by Michigan laws governing policies delivered or issued for delivery in Michigan, with respect to motor vehicles registered or principally garaged in Michigan, is not an uninsured automobile under the uninsured motorist coverage of the policy issued by the defendant DAIIE on the motor vehicle which plaintiff was driving.”

The reasoning of Woods v Progressive Mutual Ins Co, 15 Mich App 335; 166 NW2d 613 (1968), is applicable and it defeats this argument.

"II. If said Illinois automobile is determined to be an uninsured automobile under the uninsured motorist coverage of the policy issued by defendant DAIIE on the vehicle which plaintiff was driving, defendant DAIIE is entitled to a set-off in the amount of the liability coverage afforded by the Illinois insurance policy covering said Illinois automobile.”

The reasoning of Blakeslee v Farm Bureau Mutual Ins Co of Michigan, 388 Mich 464; 201 NW2d 786 (1972), is applicable and defeats this argument.

"HI. If said Illinois automobile is determined to be an uninsured automobile under the uninsured motorists coverage of the policy issued by defendant DAIIE on the vehicle which plaintiff was driving, defendant DAIIE is entitled to a set-off in the amount of the medical payments it made on behalf of plaintiff.”

This argument cannot be sustained, Keyes v Beneficial Ins Co, 39 Mich App 450; 197 NW2d 907 (1972).

In its brief under the first argument, defendant also raises two constitutional issues neither of which merits comment.

Affirmed with costs to plaintiff.


text:
    COWAN v FEDERAL-MOGUL CORPORATION
    Docket No. 29946.
    Submitted June 20, 1977, at Detroit.
    Decided August 15, 1977.
    Joseph Cowan and Maidene Cowan, his wife, filed a suit against Federal-Mogul Corporation, Joseph’s employer, and by amended complaint against that employer and John Hancock Mutual Life Insurance Company, the employer’s accident and sickness group insurance carrier, for overtime pay, severance pay and for damages against the employer for alleged tort of outrage in inflicting emotional harm and physical injury by reason of keeping plaintiff Joseph on the swing-shift, calling him to return to work after he had left and returned home, threatening to fire him and as to defendant Hancock for bad faith refusal to waive premium payments and insisting upon the return of benefits voluntarily paid and for improper discontinuance of payments, and as to both defendants for their conspiracy in regard to their conduct. Maidene Cowan’s suit was for derivative damages. The Oakland Circuit Court granted a partial summary judgment to defendants dismissing all counts except those for severance pay and overtime, Farrell E. Roberts, J. Plaintiffs appeal. Held:

    1. The summary judgment as to defendant Hancock was proper because plaintiffs failed to rebut the statements in the defendant’s affidavit for summary judgment that according to plaintiff’s physician the employee was not disabled and that repayment of benefits paid was due in accordance with an assignment regarding workmen’s compensation benefits executed by the employee. Also, the plaintiffs failed to allege facts in support of their claim of conspiracy.
    2. The summary judgment as to Federal-Mogul was proper because the claims of intentional infliction of emotional distress was with regard to compensability of injuries arising out of and in the course of employment for which jurisdiction is reposed initially in the Workmen’s Compensation Bureau. As to the claim of conspiracy, plaintiff failed to allege facts supportive of his claim.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation §§ 472, 476, 545-547.
    [2] 44 Am Jur 2d, Insurance § 2055.
    73 Am Jur 2d, Summary Judgment §§ 17,18, 20.
    82 Am Jur 2d, Workmen’s Compensation §§ 669, 670.
    [3] 73 Am Jur 2d, Summary Judgment § 29.

      Affirmed.
    1. Workmen’s Compensation — Jurisdiction—Statutes.
    Jurisdiction to determine the compensability of injuries arising out of and in the course of employment is reposed initially in the Workmen’s Compensation Bureau (MCL 418.841; MSA 17.237[841].
    2. Workmen’s Compensation — Summary Judgments — Affidavits— Rebuttal — Accident and Sickness Insurance — Appeal and Error.
    Summary judgment was properly granted to an employer’s accident and sickness group insurance carrier in an action wherein an injured employee accused the insurer of bad faith refusals to continue accident and sickness benefits or waive premium payments where the plaintiff did not rebut an affidavit presented by the defendant which demonstrated that, according to the plaintiffs physician, plaintiff was not disabled for any occupation, and thus, was not entitled to such a waiver, and where the plaintiff did not rebut the statement that defendant insurer based its demand for repayment of accident and sickness benefits on an assignment executed by plaintiff.
    3. Pleading — Statement of Claim — Conspiracy—Summary Judgment — Supportive Facts — Appeal and Error.
    Summary judgment was properly granted to the defendants in an employee’s action against his employer and the employer’s accident and sickness group insurance carrier wherein the employee alleged a conspiracy where the plaintiff failed to allege facts supportive of his claim.

      Buell A. Doelle, for plaintiffs.

      Dickinson, Wright, McKean, Cudlip & Moon (by John Corbett OMeara and Timothy H. Howlett), for defendants.
    Before: D. C. Riley, P.J., and Bashara and P. R. Mahinske, JJ.

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

   Per Curiam.

Plaintiffs appeal a partial summary judgment dismissing claims sounding in tort, conspiracy and loss of companionship.

Upon careful examination, we affirm. Concerning plaintiff Joseph Cowan’s claim of intentional infliction of emotional distress brought against defendant Federal-Mogul Corporation, Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976), controls. Its mandate is clear: Jurisdiction to determine the compensability of injuries arising out of and in the course of employment is reposed initially in the Workmen’s Compensation Bureau. MCL 418.841; MSA 17.237(841). Thus the trial court acted properly on this issue, although GCR 1963, 116.1(2) (lack of subject-matter jurisdiction) is the more appropriate ground for dismissal.

Plaintiff’s corresponding claim against defendant insurer also fails. The unrebutted affidavit presented by defendant demonstrated that, according to his own physician, plaintiff was not disabled for any occupation and, thus, was not entitled to the waiver of premium payments. Moreover, the affidavit revealed that defendant insurer based its demand for repayment of accident and sickness benefits on an assignment executed by plaintiff, in conformance with the policy provision excluding such benefits for injuries compensable under the Workers Disability Compensation Act. Where, as here, plaintiff did not rebut this affidavit by any evidence before the court, summary judgment is proper. Durant v Stahlin, 375 Mich 628, 638-639, 655-656; 135 NW2d 392 (1965), Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973).

For similar reasons, the lower court correctly dismissed the conspiracy charge. Plaintiff failed to allege facts supportive of his claim; instead, he merely asserted bad faith and claimed that defendants’ contradictory positions regarding the compensability of plaintiffs disability demonstrated a conspiracy. Absent allegations of supporting facts, dismissal by way of summary judgment is appropriate. Valentine v Michigan Bell Telephone Co, 388 Mich 19, 30; 199 NW2d 182 (1972), Pursell v Wolverine-Pentronix, Inc, 44 Mich App 416, 422; 205 NW2d 504 (1973). Moreover, the rule has been applied in cases alleging a conspiracy. Chilton’s, Inc v Wilmington Apartment Co, 365 Mich 242, 248-249, 250-251; 112 NW2d 434 (1961), Greer v Parks, 300 Mich 492, 497; 2 NW2d 476 (1942).

With regard to plaintiff wife’s derivative claim, we hold that aligned as it is with the unsuccessful claims of her husband, it too must fail.

Affirmed.


text:
    RHODES v CITY OF DETROIT
    Docket No. 30925.
    Submitted June 24, 1977, at Detroit.
    Decided September 23, 1977.
    James H. Rhodes sought workmen’s compensation benefits from the City of Detroit. An award of compensation was made by an administrative law judge. The Workmen’s Compensation Appeal Board reversed the award of compensation. Plaintiff appeals. Held:

    It is necessary to remand to the Workmen’s Compensation Appeal Board to obtain the appropriate findings so that a determination can be made whether 1) the claimant is disabled, 2) if so, is the claimant disabled on account of some personal injury, and 3) did the claimant’s employment cause, aggravate, accelerate or combine with some internal weakness or disease to produce the personal injury.
    Remanded to Workmen’s Compensation Appeal Board for further proceedings. The Court of Appeals retains jurisdiction. (The WCAB, after further findings, determined that the claimant was entitled to benefits and affirmed the administrative law judge’s earlier award of benefits. In an order of March 16, 1978, the Court of Appeals affirmed the award of compensation by the later decision of the board.)
    Workmen’s Compensation — Personal Injury — Employment Related Disability — Right to Compensation — Liability of Employer.
    The decision regarding a disabled employee’s right to, and the employer’s liability for, compensation for the employee’s disability must be resolved by answering three questions to determine whether the condition arose out of employment: (1) is the claimant disabled, (2) if so, is the claimant disabled on account of some personal injury, (3) did the claimant’s employment cause, aggravate, accelerate or combine with some internal weakness or disease to produce the personal injury; if affirmative answers to those questions are supported by the record, the claimant as a matter of law has a personal injury which arose out of employment and compensation must be awarded, but if there is support for a negative answer to any of the questions, compensation may not be awarded.

      References for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation § 240 et seq.

    Injury sustained while attending employer-sponsored social affair as arising out of and in course of employment. 47 ALR3d 566.

      Barbara, Ruby, Domol, Bowerman, Miller & Aaron, P.C., for plaintiff.

      Roger E. Craig, Corporation Counsel, and Thomas L. Walters, Assistant Corporation Counsel, for defendant.
    Before: D. C. Riley, P.J., and Bashara and P. R. Mahinske, JJ.

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

   Per Curiam.

Plaintiff appeals a decision of the Workmen’s Compensation Appeal Board (WCAB), which reversed an award of compensation to plaintiff made by an administrative law judge.

In a recent case decided by the Supreme Court, Deziel v Difco Laboratories, Inc, 394 Mich 466; 232 NW2d 146 (1975), the employee’s right to, and the employer’s liability for, compensation was discussed vis-a-vis the fact finding and law application process. The right-liability relationship, denominated by the Court as a "jural relation”, was found to rest upon application of the legal principle of "whether 'the employment aggravated, accelerated, or combined with the disease or infirmity to produce the * * * disability’ ”. Id. at 476; 232 NW2d at 150, quoting from 1 Larson, Workmen’s Compensation Law § 12.20. As to the application of that principle, the Court stated:

"To apply that principle the decision maker must resolve three questions of fact and law:
"1) Is the claimant disabled?
"2) If so, is the claimant disabled on account of some 'personal injury’?
"3) Did the claimant’s employment aggravate, accelerate, or combine with some internal weakness or disease to produce the personal injury?
"If those questions are answered in the affirmative and supported by the record, the decision maker must then find as a matter of law that the claimant had a personal injury, which arose out of the employment, and that compensation must be awarded.
"By the same token, if there is support for a negative answer to any of the questions, compensation may not be awarded.” 394 Mich at 476; 232 NW2d at 150.

Although Deziel involved conditions of the employee allegedly in existence prior to employment and aggravated thereby, the "jural relation” referred to by the Court nevertheless obtains where the condition arises during the course of employment. The only distinction is in the principle to be applied. However, this may be accomodated by modifying the principle to include employment-causation. The principle then becomes "whether the employment caused, aggravated * * * the * * * disability”. Similar modification of the third question listed by the Court in Deziel is also required.

From our reading of the "Analysis and Findings” of the WCAB opinion, we cannot determine whether the foregoing queries were adequately resolved by the appeal board, independent of Dr. Nelson’s opinion, to obtain proper application of the requisite legal principle. Thus a remand is necessary to obtain the appropriate findings. Carter v Detroit Board of Education, 66 Mich App 128; 238 NW2d 419 (1975).

Remanded for proceedings consistent with this opinion. We retain jurisdiction.