author: Per Curiam.

text:
    PEOPLE v STINSON
    Docket No. 77-2890.
    Submitted December 21, 1978, at Detroit.
    Decided February 21, 1979.
    Leonard E. Stinson was convicted of possession of a gas-ejecting device, Recorder’s Court of Detroit, George W. Crockett, Jr., J. Defendant appeals, alleging that the statute under which he was convicted is overly broad and vague and that the prosecutor’s failure to prove that he was not licensed to possess a gas-ejecting device requires reversal of the conviction. Held:

    1. The statute is open to challenge on vagueness grounds. However, once the statute is pared down to prohibit only gas-ejecting weapons the uncertainty ceases. Since the device possessed by the defendant was a weapon and was marked as such, he clearly was in violation of the pared-down statute.
    2. The defendant failed to object to the prosecutor’s alleged failure to prove that defendant did not possess a license, thus that issue is not preserved for review in the absence of manifest injustice.
    Affirmed.
    1. Criminal Law — Gas-Ejecting Weapons — Statutes — Vagueness.
    The portion of a statute making it unlawful to possess any gas-ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact is unconstitutionally vague in two respects: (a) by leaving it to the police, the prosecution and, ultimately, the trier of fact to determine the difference between legal and illegal devices for ejecting harmful gases, the statute confers an impermissible discretion to determine whether an offense has been committed, and (b) the statute does not provide fair notice of the conduct proscribed; however, if that portion of the statute is pared down to prohibit only possession of gas-ejecting weapons; the uncertainty ceases since a weapon is generally understood to be anything used or designed to be used to injure another.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 17 et seq.

    73 Am Jur 2d, Statutes § 346.
    79 Am Jur 2d, Weapons and Firearms §§ 1-5.

       5 Am Jur 2d, Appeal and Error §§ 545-557, 835.

      2. Appeal and Error — Failure to Object — Manifest Injustice.
    Matters unobjected to at the trial level are not preserved for review, absent manifest injustice.

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

      Gerald S. Surowiec, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and Bashara and Allen, JJ.
   Per Curiam.

Defendant was found guilty in a bench trial of possession of a gas-ejecting device, contrary to MCL 750.224; MSA 28.421, and appeals.

The testimony adduced at trial established that defendant had in his possession a canister which he removed from his car and placed in the street. A Detroit police officer observed defendant’s actions and retrieved the can. A police chemist testified that the canister contained "Paralyzer” CS military tear gas. The term "weapon” appeared on the canister.

Defendant first argues that the statute is unconstitutional for the reason that it is overly broad and vague. He contends that many innocuous products are within its scope and that it fails to designate those substances which are proscribed.

This Court has recently reviewed the statute in question. In People v Guy, 84 Mich App 610; 270 NW2d 662 (1978), a majority of the panel concurred with the argument advanced by defendant in the case at bar. However, we unanimously adopt the reasoning of the dissenting opinion of Judge M. F. Cavanagh. That opinion held that while the statute’s sweeping language opened it to attack, when its proscription was limited to possession of gas ejecting weapons, certainty and constitutionality was established.

Defendant also contends that the prosecution’s failure to prove that he was not licensed to possess a gas-ejecting device requires reversal of the conviction. Defendant failed to bring this issue to the attention of the trial court. Absent manifest injustice, matters unobjected to at the trial level are not preserved for review. People v Carroll, 396 Mich 408; 240 NW2d 722 (1976), People v Atsilis, 60 Mich App 738; 231 NW2d 534 (1975). While the question might be arguable, the analogy of the facts in this case to those in People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), convinces us that no manifest injustice occurred.

Defendant’s remaining allegations of error are without merit.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v HICKS
    Docket No. 77-3416.
    Submitted December 5, 1978, at Detroit.
    Decided February 21, 1979.
    Stacy J. Hicks was charged with felony murder and armed robbery in connection with a robbery during which three persons were killed. Subsequently, the defendant was convicted of armed robbery and voluntary manslaughter, Recorder’s Court of Detroit, Dalton A. Roberson, J. The defendant appeals, alleging (1) that the trial court erred in its instructions to the jury on felony murder by removing the element of malice from the jury’s consideration and (2) that the two convictions violated his constitutional guarantees against double jeopardy. Held:

    1. The trial court gave a proper instruction on the element of malice. However, even if the instruction regarding the element of malice were to be considered erroneous, the resulting error would not require reversal because a conviction for manslaughter does not require a finding of malice.
    2. The two offenses for which the defendant was convicted have different elements and statutory purposes and neither is a lesser included offense of the other. There was no double jeopardy violation.
    Affirmed.
    1. Homicide — Felony Murder — Instructions to Jury — Malice — Manslaughter.
    An instruction to the jury in a trial for felony murder and armed robbery wherein the trial judge told the jury that the intent required for the underlying offense of armed robbery was sufficient to support a conviction for felony murder was not an erroneous instruction; even if viewed as erroneous, there was no prejudice to a defendant where the defendant was convicted of manslaughter, not felony murder.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 54, 482 et seq., 498, 535.

       40 Am Jur 2d, Homicide § 54.

       21 Am Jur 2d, Criminal Law §§ 182-189.
    40 Am Jur 2d, Homicide § 183 et seq.

    Application of felony murder doctrine where the felony relied upon is an includible offense with the homicide. 40 ALR3d 1341.
    What felonies are inherently or foreseeably dangerous to human life for purposes of felony murder doctrine. 50 ALR3d 397.
    What constitutes termination of felony for purpose of felony murder rule. 58 ALR3d 851.

      2. Homicide — Murder — Malice — Manslaughter.
    Murder, absent malice, is manslaughter.
    3. Homicide — Felony Murder — Manslaughter — Double Jeopardy — Armed Robbery — Lesser Included Offenses.
    Punishing a defendant for the greater offense of felony murder and for the included offense of the underlying felony constitutes a violation of the double-jeopardy clause of the United States Constitution and the Michigan Constitution; however, there is no double-jeopardy violation where a defendant charged with felony murder and the underlying offense of armed robbery is convicted of both manslaughter and armed robbery because manslaughter and armed robbery have different elements and different statutory purposes and neither crime is a lesser included offense of the other (US Const, Am V, Am XIV; Const 1963, art 1, § 15).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   Per Curiam.

Defendant was charged with felony murder, in violation of MCL 750.316; MSA 28.548, and armed robbery, contrary to MCL 750.529; MSA 28.797, in connection with the September 24, 1974, robbery of a "dope house” in which three individuals were killed. Following a jury trial held June 10-17, 1977, defendant was convicted of voluntary manslaughter, MCL 750.321; MSA 28.553, and armed robbery. Defendant was sentenced to concurrent terms of 10 to 15 years imprisonment for manslaughter and 15 to 25 years for armed robbery. He now appeals as of right.

Defendant’s first contention is that the trial court erred in its felony-murder instructions by removing the element of malice from the jury’s consideration. Our Court has split on the issue of whether malice is imputed from the underlying felony or must be submitted to the jury as a separate element. Compare, for example, People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), People v Till, 80 Mich App 16; 263 NW2d 586 (1977), and People v Wilson, 84 Mich App 636, 639-655; 270 NW2d 473 (1978) (N. J. Kaufman, J., dissenting).

In the case at bar the judge gave a correct instruction on malice. However, in response to an objection by the prosecutor, just before the jury retired to deliberate, the judge told the jury that the intent required for the robbery was sufficient for murder. This instruction would have been erroneous under the rule announced in Fountain. Even so, the application of the Fountain rule to the present case would not require reversal. It is clear that defendant was not prejudiced by the arguably incorrect instruction. Defendant was convicted of manslaughter, and as stated in People v Hansma, 84 Mich App 138, 144; 269 NW2d 504 (1978), "murder, absent malice, is manslaughter”. See also People v Dietrich, 87 Mich App 116; 274 NW2d 472 (1978). Thus we find no cause for reversal on this claim.

Secondly, defendant argues that his right not to be placed twice in jeopardy for the same offense was violated by the two convictions. We disagree. Again, had defendant been convicted of felony murder and the underlying armed robbery, his contention would have merit. See People v Anderson, 62 Mich App 475; 233 NW2d 620 (1975), People v Wilder, 82 Mich App 358, 364; 266 NW2d 847 (1978), lv gtd on other grounds, 403 Mich 816 (1978). However, there is nothing constitutionally impermissible about convictions of manslaughter and armed robbery. The two crimes have different elements and different statutory purposes, and neither crime is a lesser included offense of the other. See People v Ora Jones, 395 Mich 379, 389-390; 236 NW2d 461 (1975). Thus, defendant’s second contention must also be rejected.

Defendant raises two additional claims of error, one relating to the jury instructions and one concerning the admission of a shotgun. We have examined the record and have found these claims to be without merit.

Affirmed.

       "Third, that at the time of the armed robbery which caused the death of the deceaseds, the defendant either intended to kill the deceaseds or consciously created a very high degree of risk of death to another with the knowledge of its probable consequences.
      "Fifth, the Defendant must have caused the death without justification, excuse or mitigation.”

       "Felony murder, the element of unlawful intent is satisfied if you find beyond a reasonable doubt that the Defendant intended the robbery.
      "It is not necessary that the Defendant intended the death of the Deceaseds.
      "What I’m simply saying, under the law in Michigan felony murder means in the perpetration of a felony that that is if I come in to rob and in the perpetration of a robbery I kill you then the wrongful intent as to the murder is satisfied when the people establish that I intended to rob you.
      "Do you understand what I’m saying? Does anybody have any problems with that?
      "JUROR NUMBER 9:1 don’t understand what you said.
      "THE COURT: Okay. Felony murder under the law in Michigan means that where you murder ordinarily has to be proved, there is a premeditation, wrongful, with malice and that is a plan. But felony murder simply means that the People have to prove that there was a felony being committed, that the Defendant intended to commit a felony, that is armed robbery, and during the course of the completion of the felony he killed a person. That’s what makes it murder in the first degree.
      "Do you understant what I’m saying? They have to prove beyond a reasonable doubt the Defendant intended the robbery and in the perpetration of the robbery the people were killed and therefore he satisfied the element of wrongful intent.”

       US Const, Ams V and XIV; Const 1963, art 1, § 15.


text:
    PEOPLE v SHRADER
    Docket No. 77-4394.
    Submitted November 1, 1978, at Lansing.
    Decided February 21, 1979.
    Carl J. Shrader was convicted of second-degree murder in Monroe Circuit Court, C. Ralph Kohn, J. On appeal, defendant claims the trial court’s refusal to exercise its discretion relative to defendant’s pretrial motion to suppress reference to his prior convictions at trial was error. Held:

    Defendant’s pretrial motion to suppress reference to his prior convictions at trial was denied as being premature but defense counsel was clearly advised that he was not precluded from raising the motion again at the time of trial. The matter was never raised either before or during defendant’s three-day tried; this is tantamount to abandonment and although a trial court is required to exercise its discretion and it is error to fail or refuse to exercise this discretion in deciding a motion to suppress reference to prior convictions, there can be no abuse of discretion where the trial court’s discretion has not been invoked.
    Affirmed.
    1. Criminal Law — Evidence — Suppression of Evidence — Discretion — Prior Convictions — Appeal and Error.
    Generally, where a defendant moves to exclude reference to his prior convictions, the trial court may in the exercise of discretion preclude such reference; the court is required to positively indicate and identify its exercise of discretion and it is error to fail or refuse to exercise this discretion.
    2. Criminal Law — Evidence — Suppression of Evidence — Prior Convictions — Discretion — Failure to Preserve Issue.
    The issue of reference to a defendant’s prior convictions during trial is abandoned where his pretrial motion to suppress was denied as premature but defense counsel was clearly advised that he was not precluded from raising the motion again at the time of trial and the matter was never again raised before or during a three-day trial; there can be no abuse of discretion where the trial court’s discretion has not been invoked.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 601, 602, 772, 773.
    29 Am Jur 2d, Evidence § 320 et seq.

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

      Scibetta & Adrahtas, P.C., for defendant on appeal.
    Before: M. J. Kelly, P.J., and J. H. Gillis and M. F. Cavanagh, JJ.
   Per Curiam.

Following a jury trial, defendant was convicted of second-degree murder, in violation of MCL 750.317; MSA 28.549. He was sentenced to a prison term of 40 to 60 years and appeals now by right.

Of the five issues raised on appeal, only one merits discussion. This is defendant’s claim of error in the trial court’s refusal to exercise its discretion relative to defendant’s pretrial motion to suppress reference to his prior convictions.

Two and one-half months in advance of trial defendant filed a motion requesting the trial court to suppress use of his prior convictions should he take the stand at trial. At that time, the court denied the motion for the reason that it was premature. Defense counsel was clearly advised that he was not precluded from raising the motion again at the time of trial. The matter was, however, never again raised either before or during the three-day trial.

In general, where the defendant moves to exclude reference to his prior convictions, the trial court may in the exercise of discretion preclude such reference. It is error to fail or refuse to exercise this discretion. People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). The court is required to positively indicate and identify its exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). In the present case defense counsel simply failed to mention the issue during the three-day trial; this is tantamount to abandonment of the issue. There can be no abuse of discretion where the trial court’s discretion has not been invoked in the first place. People v Moore, 391 Mich 426; 216 NW2d 770 (1974), People v Jones, 44 Mich App 633, 638; 205 NW2d 611 (1973).

Finding no merit in the remaining issues, we affirm the conviction.

       Because of the state of this record, we express no comment on the court’s premising its denial on prematurity. We do note, however, that when the requisite information is available, a ruling by the court in advance of trial, in addition to providing early clarification of the ground rules to both the prosecution and the defense, should also facilitate the conduct of the trial. Defense counsel and prosecutors should be encouraged to bring such motions in advance of trial, enabling the trial court to exercise its discretion under less hectic and more thoughtful circumstances.

       "THE COURT: Well, first of all, taking of the motion to require that any prior convictions of Defendant be suppressed at a jury trial, I have never been confronted with a motion of this nature at this stage of the trial. We have had discussions prior to trial whether or not the Court is going to permit the prior convictions to be used for impeachment, but this motion is asking the Court to right at this point give a blanket permission to the Defendant to indicate to him that he can take the stand. I think that is the purpose of the motion. He wants to take the stand, but he does not want any of the convictions to be inquired into.
      "Number one, I do not know what his prior convictions are at this stage of the game. Furthermore, even if I did, there is no way, I think, that the Court can justifiably grant the motion, because it is a matter of discretion with the Court. During the course of the trial if there comes a time when certain prior convictions become, let’s say, more probative than prejudicial, the Court has a right at that time to rule on it, whether or not it is going to be let in. It is purely discretionary. I do not propose to exercise that discretion at this time. Motion is denied.
      "MR. GARRETT: But I can raise that again; is that correct?
      "THE COURT: Absolutely. You are not precluded.
      "MR. GARRETT: I would want to point out for the Court the reason why I did file the motion now is that I believe under the Jackson principle one must file those motions in advance of trial. I thought it would be best to get it before the Court at this point.
      "THE COURT: Fine. If you are suggesting that during trial there comes a time when you want to move to suppress an individual conviction, or something of that nature comes up, you are not precluded by my ruling here now, no.”


text:
    RINGO v RICHARDSON
    Docket No. 77-4481.
    Submitted January 10, 1979, at Detroit.
    Decided February 21, 1979.
    Leave to appeal applied for.
    Michael L. Ringo was charged with unlawful possession of a credit card with intent to circulate, and was acquitted. He then brought an action against Clyde Richardson, a dealer-operator of a Shell service station, and against Shell Oil Company, for malicious prosecution, false imprisonment and libel and slander. The libel and slander count was dismissed, being barred by the statute of limitations. A verdict was returned against both defendants on the other counts. Defendant Richardson’s motion to set aside the verdict and for judgment notwithstanding the verdict was granted. Shell Oil Company’s motion for judgment notwithstanding the verdict or, alternatively, for a new trial was denied, and judgment was entered against Shell in the entire amount of the jury verdict, Wayne Circuit Court, Lysle G. Hall, Jr., J., and Shell appeals. Held:

    1. The plaintiff failed to carry his burden of proof on the element of lack of probable cause to prosecute. The evidence presented at trial was sufficient to show that there had been probable cause to prosecute on the criminal charge. Several facts which the plaintiff claims that Shell’s agent failed to disclose to the police were either immaterial or unknown to the agent at the time the warrant for plaintiff’s arrest was requested, and even if those facts had been known to the police, probable cause to arrest the plaintiff would have existed. The trial court should have granted Shell’s motion for directed verdict as to the malicious prosecution claim.
    2. The claim of false imprisonment is not valid because the arrest warrant was issued upon probable cause and the arrest, therefore, was lawful.
    Reversed, and case dismissed.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 849, 886.

       52 Am Jur 2d, Malicious Prosecution §§ 6-8.

       52 Am Jur 2d, Malicious Prosecution § 50 et seq.

       52 Am Jur 2d, Malicious Prosecution §§ 23, 50 et seq.

       52 Am Jur 2d, Malicious Prosecution § 23 et seq.

       41 Am Jur 2d, Indictments and Informations §§ 119, 120.

      1. Appeal and Error — Motions — Directed Verdict — Judgment Notwithstanding the Verdict.
    The Court of Appeals, in reviewing a trial court’s denial of a motion for a directed verdict or for a judgment notwithstanding the verdict, views the evidence in the light most favorable to the party opposing the motion, and if reasonable men could differ as to the meaning of the evidence, the motion was properly denied.
    2. Malicious Prosecution — Elements.
    The elements of malicious prosecution are (1) a criminal proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) absence of probable cause for the proceeding, and (4) malice or a primary purpose other than that of bringing the offender to justice.
    3. Criminal Law — Probable Cause to Prosecute — Private Citizens.
    A citizen has probable cause to institute a criminal prosecution where the information that is possessed is believed and is such and from such sources that the generality of businessmen of ordinary care, prudence and discretion would prosecute upon the information under the same conditions.
    4. Malicious Prosecution — Probable Cause to Prosecute — Burden op Proof.
    The plaintiff in an action for malicious prosecution bears the burden of proving lack of probable cause to prosecute.
    5. Malicious Prosecution — Good Faith — Material Facts.
    A defendant may escape liability for malicious prosecution where he in good faith fully and fairly revealed all material facts within his knowledge to the police or to the prosecutor who in the exercise of discretion proceeded to prosecute; however, if the defendant failed to make a full and fair disclosure of all material facts, if he gave false information, or if he interfered with the police or prosecutor’s discretion, he may not escape liability.
    6. Criminal Law — Date of Offense — Statutes.
    It is not necessary to prove the exact date of an offense in order to convict a defendant of that offense (MCL 767.45, 767.51; MSA 28.985, 28.991).

      Rader, Eisenberg & Feldman, for plaintiff.

      Dahlberg, Mallender & Gawne (by Philip A. Grashoff, Jr.), for Shell Oil Company.
    Before: Bronson, P.J., and R. M. Maher and J. T. Letts, JJ.

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

   Per Curiam.

Following the dismissal of a criminal charge of unlawful possession of a credit card with intent to circulate, plaintiff brought this action against Shell Oil Company, whose agent had signed the complaint in the criminal proceedings. Defendant Richardson is an independent dealer-operator of a Shell station. Richardson had identified plaintiff in the criminal proceedings as the man who presented a stolen credit card, which he confiscated. The plaintiff’s complaint alleged (1) malicious prosecution, (2) false imprisonment, and (3) libel and slander. At the close of the plaintiff’s case in chief, the court granted the defendants’ motion to dismiss the libel and slander count because it was barred by the statute of limitations. The defendants’ motions for directed verdicts on counts 1 and 2 were denied. The defendants’ motions for directed verdicts were renewed at the close of all of the evidence, and again were denied. The jury returned a verdict against both defendants in the amount of $34,100, of which $14,000 was assessed by the jury as actual damages. The motion of defendant Richardson to set aside the verdict and for judgment notwithstanding the verdict (n.o.v.) was granted. Shell Oil’s motion for judgment n.o.v. or, in the alternative, for a new trial was denied, and judgment was entered against Shell in the amount of $34,100. Shell brings this appeal as of right, claiming that the trial court erred in denying its motions for directed verdicts or for judgment n.o.v.

In reviewing a trial court’s denial of a motion for a directed verdict or judgment n.o.v., we view the evidence in the light most favorable to the party opposing the motion. If reasonable men could differ as to the meaning of the evidence, the motion was properly denied, Birou v Thompson-Brown Co, 67 Mich App 502; 241 NW2d 265 (1976). To facilitate application of this test to the case at bar, we summarize the evidence adduced at trial.

Thomas Barbour, a Shell Oil Company credit card investigator, received a call from the Windsor Police Department inquiring as to the existence of any information concerning a purportedly stolen credit card in the name of Lonzy Durden, Jr. Barbour was told that a black male, about 25 years of age, had presented a Shell credit card bearing Mr. Durden’s name to a gas station attendant in Windsor, Ontario. When given the receipt for signature the driver signed Mr. Durden’s name and changed the Michigan license number FFD 305 which the attendant had written on the receipt, to FPD 305. As the car drove away the attendant remarked the correct license number FFD 305 on his copy of the receipt.

Upon receipt of the foregoing information, Barbour requested the Shell Oil Company credit card department to advise him of whether the Lonzy Durden credit card had been reported stolen. He also requested that he be furnished with the file relating to the Durden credit card. The file indicated that the card had been reported stolen on February 26, 1972.

At Barbour’s request, the Detroit Police Department obtained information from the Secretary of State’s office with respect to the ownership of the automobile bearing Michigan license plate number FFD 305. The Secretary of State’s report disclosed that the automobile was registered in the name of the American Can Company and Michael L. Ringo. Barbour then learned by calling the American Can Company that Michael L. Ringo was its employee. Barbour presented the information which he had received from the Windsor police and from the Shell credit department to the Detroit police.

Sergeant Petricevich of the special investigation section of the Detroit Police Department obtained a picture of the plaintiff, which was attached to an application for a wine salesman’s license. The police department gave Barbour the picture of Ringo and four other persons to use when asking various gas station attendants if they could identify the user of the stolen credit card. In an attempt to get an identification of the card user, Barbour exhibited the pictures to personnel at three or four Shell stations without obtaining an identification.

In August or September, 1972, a black male attempted to use the Lonzy Durden stolen credit card for the purchase of gasoline at a service station owned by the defendant, Richardson. When Richardson demanded identification, none was presented. Richardson then checked the card through the Shell Oil Company’s computerized stolen/lost card tracing system and was told that the card was stolen and that he should retain it. Richardson told the card user that he was retaining the card; the driver purchased the gasoline with cash and left the station. Richardson could not remember the date on which he confiscated the card. His testimony was that it was in the "fall of the year”, in August or September. On September 21, 1972, Richardson gave the recovered card to a Shell Oil Company sales representative. The salesman gave the card to Barbour, who in turn gave the recovered card to the Detroit Police Department.

Barbour then exhibited to Richardson the photographs which he had obtained from the Detroit Police Department, and asked Richardson if one of them was the driver of the automobile who attempted to use the stolen credit card. Richardson positively identified the plaintiff, Michael L. Ringo, as that individual.

Several of the signatures on the receipts appeared to Barbour and the investigating officers to be similar to a known signature of the plaintiff, Ringo. Many of the fraudulent invoices exhibited an attempt to change the FFD 305 license number which the attendant had endorsed thereon.

The Detroit Police Department prepared a complaint, information, and request for warrant, alleging that the plaintiff possessed the credit card of another with intent to circulate. Barbour signed the complaint at the request of police officers. A warrant was issued and plaintiff was arrested. After a bench trial in Recorder’s Court, plaintiff was acquitted.

The plaintiff at all times denied ever being at Richardson’s service station and denied that he ever used the Shell credit card.

The elements of malicious prosecution are:

"(1) a criminal proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) absence of probable cause for the proceeding, and (4) 'malice’ or a primary purpose other than that of bringing the offender to justice.”

Wilson v Yono, 65 Mich App 441, 443; 237 NW2d 494 (1975). It is the third element of this definition which is the focus of inquiry in the case before us. A citizen has probable cause to prosecute when:

" '[T]he information possessed is believed and is such and from such sources that the generality of business men [sic] of ordinary "care, prudence and discretion” would prosecute upon it under the same conditions * * ' Hamilton v Smith, 39 Mich 222, 226 (1878).” Wilson v Yono, supra, 446.

The burden of proving lack of probable cause is on the plaintiff, Taft v J L Hudson Co, 37 Mich App 692; 195 NW2d 296 (1972).

Taking the evidence presented at trial in the light most favorable to plaintiff, we are convinced that he failed to carry his burden of proof on the element of lack of probable cause. The evidence established that:

(1) Barbour knew that the credit card in question was stolen.

(2) Barbour knew that the card had been used several times by someone driving a car with the license number FFD 305.

(3) Barbour knew that the signatures on several of the receipts appeared similar, and that the card user attempted to change the license numbers on several of the receipts.

(4) Barbour knew that the license number FFD 305 was registered to Ringo’s employer and to Ringo.

(5) Barbour then learned that Richardson had seized the stolen card, and that Richardson positively identified Ringo as the person who attempted to use the card, from a picture of Ringo supplied by the police. These facts are sufficient to establish probable cause.

Plaintiff lays heavy emphasis on the fact that Barbour did not tell the Detroit police everything he knew about the alleged offense. It is true that a defendant may escape liability for malicious prosecution by showing that he in good faith fully and fairly revealed all material facts within his knowledge to the police or prosecutor, who then in exercise of his uncontrolled discretion proceeded to prosecute, see Wilson v Yono, supra, and cases cited therein. A defendant may not escape liability, however, if he failed to make a full and fair disclosure of all material facts, if he gave false information, or if he interfered with the official’s discretion, as through improper pressure to prosecute, Renda v International Union, UAW, 366 Mich 58; 114 NW2d 343 (1962). There is no evidence that Barbour made false statements or that anyone interfered with the prosecutor’s exercise of his discretion. Plaintiff, however, points to three facts which he alleges that Barbour failed to reveal to the police: (1) Barbour had shown plaintiff’s photograph to attendants at other service stations where the stolen card had been used without obtaining an identification; (2) Richardson did not recall the date on which he confiscated the card; and (3) Richardson did not pay much attention to the man from whom he confiscated the card, because he serviced 1500 customers per day and because he lost interest once the man paid cash for the gas.

Regarding the first allegation, it is sufficient to say that the failure to identify plaintiff by other persons present on other occasions when the stolen card was used would give neither Barbour nor the police reason to doubt the positive identification made by Richardson. It is noteworthy that only Richardson knew at the time of the encounter that the card was stolen.

Regarding point (2), on which the trial court based its denial of defendant’s motions, we point out that it is not even necessary to prove the exact date of the offense to convict a defendant, MCL 767.45; MSA 28.985, MCL 767.51; MSA 28.991, People v Howell, 396 Mich 16; 238 NW2d 148 (1976).

Regarding the third alleged fact, there is nothing in the record to show that Barbour knew that Richardson paid little attention to the man. Richardson did not recall having told Barbour so, nor did Barbour remember being told. Moreover, Richardson offered this fact only as an explanation for his inability to recall details of the man’s appearance, while he at all times affirmed his identification of plaintiff’s photograph as positive and unhesitating.

None of the facts which Barbour allegedly failed to disclose negates his claim of full and fair disclosure of all material facts to the police. The missing facts were either immaterial or unknown to Barbour at the time of the warrant request. Even had all these facts been revealed to the police, probable cause to arrest plaintiff would have existed. See Gooch v Wachowiak, 352 Mich 347; 89 NW2d 496 (1958). The trial court was in error in denying defendant’s motions for directed verdicts as to the malicious prosecution claim.

Because the warrant was issued upon probable cause, the arrest of defendant was lawful. The false imprisonment claim must therefore fall as well. See Donovan v Guy, 347 Mich 457; 80 NW2d 190 (1956), Tumbarella v The Kroger Co, 85 Mich App 482; 271 NW2d 284 (1978).

The judgment against defendant is reversed and the case dismissed.


text:
    PEOPLE v HOERL
    Docket No. 77-4929.
    Submitted December 11, 1978, at Detroit.
    Decided February 21, 1979.
    John E. Hoerl was convicted of armed robbery, Wayne Circuit Court, Roland L. Olzark, J. Defendant appeals alleging errors in the admission of testimony, elicited by the prosecutor, that he had been previously identified by the complainants at a pretrial photographic display conducted without the benefit of counsel, that the prosecution allegedly introduced hearsay evidence to bolster the complainant’s in-court credibility, and that references to the term "mug shots” at trial impermissibly suggested to the jury the possibility of a prior criminal record. Held:

    1. The right to have counsel present at a photo showup attaches upon a defendant once the defendant is placed in custody and not when the investigation focuses upon an individual.
    2. Defendant was not entitled to counsel at the precustody photo showup, therefore, the trial court properly admitted the identification testimony.
    3. Defendant was not readily available for a corporeal lineup at the time of the photo identification procedure since, at that time, he was not in custody, his arrest was not warranted, and he could not have been compelled to participate in a corporeal lineup.
    4. The prosecutor introduced hearsay evidence to bolster the complainants’ in-court credibility; however, it was harmless error since the same facts were shown by other competent testimony and the issue was not properly preserved for review by objection to the testimony in the lower court or by a request for a curative instruction.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 545 et seq.

       21 Am Jur 2d, Criminal Law §§ 368, 369, 442 et seq.

    29 Am Jur 2d, Evidence §§ 367, 371, 372.
    Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedure. 39 ALR3d 1000.

       21 Am Jur 2d, Criminal Law § 442 et seq.

       5 Am Jur 2d, Appeal and Error § 737.
    29 Am Jur 2d, Evidence § 493 et seq.

    Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection. 79 ALR2d 890.

      5. Defendant’s contention that references to the term "mug shots” impermissibly suggested to the jury the possibility of a prior criminal record lacks merit since the term was used by a complainant in response to proper questioning on direct examination, the prosecutor only repeated the phrase once, defendant’s attorney didn’t object, and in fact, used the term on cross-examination, and the testimony was not inherently prejudicial nor deliberately injected into the proceedings.
    Affirmed.
    1. Criminal Law — Appeal and Error — Constitutional Law — Preserving Questions.
    Defense counsel’s failure to raise a timely objection, before or during trial, to a pretrial photographic identification procedure at which the defendant was not represented by counsel does not preclude appellate review of that objection because it raises an alleged violation of a constitutional right.
    2. Criminal Law — Right to Counsel — Photographic Identification — Custody — Investigative Focus — Appeal and Error.
    The right to have counsel present at a photographic showup attaches once a defendant is placed in custody, not when the investigation focuses upon an individual; therefore, a trial court properly admitted testimony, elicited by the prosecutor in a trial for armed robbery, that the defendant had been previously identified by the complainants at a pretrial photographic display conducted without the benefit of counsel where the defendant was not in custody and could not have been compelled to participate in a corporeal lineup at the time of the pre-custody photo showup.
    3. Criminal Law — Photographic Identification — Pre-Custody Situations — Corporeal Lineups.
    Identification by photograph may not be used in pre-custody situations where the accused can be readily produced for a corporeal lineup.
    4. Arrest — Criminal Law — Probable Cause — Informants — Basis for Information.
    Evidence derived from an informant will not, by itself, constitute probable cause for an arrest unless: (1) the police have reason to believe that the information is reliable, and (2) the police are informed of the underlying circumstances upon which the informant based his conclusion.
    5. Evidence — Hearsay — Appeal and Error — Harmless Error.
    The erroneous admission of hearsay testimony is harmless error where the same facts are shown by other competent testimony.
    6. Evidence — Criminal Law — Appeal and Error — Preserving Issues — Hearsay Testimony.
    A defendant did not properly preserve an issue regarding the erroneous admission of hearsay testimony at his trial where no objection to the testimony was presented in the lower court and there was no request by defense counsel for a curative instruction.
    7. Criminal Law — Appeal and Error — Mug Shots.
    A defendant’s contention that references to the term "mug shots” at his trial impermissibly suggested to the jury the possibility of a prior criminal record lacks merit where the term was used by a complainant in response to proper questioning on direct examination, the prosecutor only repeated the phrase once, defendant’s attorney did not object and in fact used the term on cross-examination, and the testimony was not inherently prejudicial nor deliberately injected into the proceedings.

      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 the people.

      Gromek & Bendure, for defendant.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

On April 19, 1977, defendant John Hoerl was convicted by a jury of two counts of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to concurrent prison terms of 5 to 15 years, appeals as of right, and raises three issues.

The evidence adduced at trial showed that on the afternoon of August 16, 1976, defendant entered the Taylor home of Beverly Hill, assaulted her with a gun, and seized a sum of money earmarked for her honeymoon. Leonard Kobylawski arrived at the house shortly thereafter. The intruder pointed a gun at him and confiscated $14.

Two days later, Mrs. Hill and her husband left for a vacation in Virginia. Upon their return a week or two after the robbery date, she received an anonymous phone call. The caller, a female, gave the defendant’s name as the robber. That same day a photographic showup was conducted at which there was apparently no attorney present. Defendant was tentatively identified by Beverly Hill and positively identified by Mr. Kobylawski. A corporeal lineup, at which counsel was present, was held approximately three months subsequent to the robbery. Both complainants identified the defendant at this time, and he was further identified by both at trial.

Defendant’s first allegation of error concerns his assertion that the lower court erroneously admitted testimony, elicited by the prosecutor, that he had been previously identified by the complainants at a pretrial photographic display without benefit of counsel. No objection was tendered by defendant’s attorney before or at trial; nevertheless, the failure to object to a pretrial identification procedure will not obviate our consideration of an alleged violation of a constitutional right. People v Lester, 50 Mich App 725, 727; 213 NW2d 793 (1973), lv den, 392 Mich 791 (1974), People v Cotton, 38 Mich App 763, 767; 197 NW2d 90 (1972), People v Schumacher, 29 Mich App 594, 596; 185 NW2d 633 (1971).

In People v Lee, 391 Mich 618, 625; 218 NW2d 655 (1974), a unanimous Michigan Supreme Court held that the right to have counsel present at a photo showup attaches once a defendant is placed in custody, and not, as defendant herein contends, when the investigation "focuses” upon an individual:

"The Franklin Anderson rule attaches with custody. Compare People v Cesarz, 44 Ill 2d 180; 255 NE2d 1, 4 (1969); United States v Zeiler, 427 F2d 1305, 1307 (CA 3, 1970); State v Keel, 5 NC App 330, 335-336; 168 SE2d 465, 468-469 (1969). Defense counsel’s argument that the right to counsel attaches once 'an investigation has focused’ on a particular suspect is an inaccurate one, insofar as it is supposed to refer to 'pre-custody’ investigations. The cases to which the defendant refers are in-custody not pre-custody cases.
"We decline to extend the reasoning of Franklin Anderson to the pre-custody, pre-questioning, mere suspicion phase that was evidenced here. It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book’ would require the representation of counsel. That would be impossible and absurd.” (Emphasis in original.)

Subsequent decisions of this Court have consistently followed the Lee decision. See, e.g., People v McNeill, 81 Mich App 368, 375; 265 NW2d 334 (1978), People v Coles, 79 Mich App 255, 262; 261 NW2d 280 (1977), People v Flippo, 70 Mich App 652, 656-657; 247 NW2d 321 (1976), People v Met- calf, 65 Mich App 37, 42-43; 236 NW2d 573 (1975). However, in People v Kachar, 400 Mich 78, 88-89; 252 NW2d 807 (1977), the Supreme Court majority opinion stated that:

"In People v Anderson, 389 Mich 155, 180-181; 205 NW2d 461 (1973), we approved the rule then being applied by the Court of Appeals which required that counsel be present at a photographic identification of an accused who is in custody.
"We also approved the application of that rule to a situation where defendant, although not in custody, is the focus of investigation. Thus, in People v Cotton, 38 Mich App 763, 769-770; 197 NW2d 90 (1972), the Court of Appeals held that counsel must be present at a photographic identification when '[i]t’s purpose [is] to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander’.”

However, as Kachar was signed by only two justices, it is not binding precedent. Furthermore, in that case the photo showup, unlike the present situation, was conducted after the defendant was taken into custody, bound over for trial, and then released. In Cotton, supra, which decision was specifically limited to its facts, defendant was also taken into custody and released prior to the photographic identification procedure. Although the defendants in Kachar and Cotton were not in custody at the time of the counsel-less showups, the showups were not prior to custody. The holding of People v Lee that pre-custody showups do not require the presence of counsel, therefore, is not inconsistent with either Cotton or Kachar. Additionally, the degree of investigative scrutiny present in both Kachar and Cotton was significantly more acute than in the case at bar, where defendant was never before in custody, nor was he connected in any previous way with the crime until police reception of the complainant’s anonymous tip.

Accordingly, under People v Lee, supra, we hold that as defendant was not entitled to counsel at the pre-custody photographic showup, the court below properly admitted the identification testimony. This renders moot defendant’s brief assertion that the subsequent identifications were illegally tainted.

Our inquiry is not terminated, however, for we must briefly consider the corollary issue, not posited in defendant’s brief, of whether defendant at the time of the identification procedure was readily "available for a corporeal lineup”. If so, then identification by photograph is not permissible, even in pre-custody situations. People v McNeill, supra, at 376. See also People v Jackson, 391 Mich 323, 338; 217 NW2d 22 (1974).

People v McNeill, supra, at 377, determined that defendant was not readily available for a corporeal lineup because the police lacked sufficient information to arrest him. See also, People v Lee, supra, at 623, People v Coles, supra, at 262. Application of this standard presents no difficulty in the case at bar. The police had only the tip of an anonymous caller from which to infer defendant’s involvement in the crime. Evidence derived from an informant will not, by itself, constitute probable cause for arrest unless: (1) the police have reason to believe that the information is reliable, and (2) the police are informed of the underlying circumstances upon which the informant based his conclusion. Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), People v Daniels, 60 Mich App 458, 464; 231 NW2d 386 (1975). The police in this case had neither of these elements; arrest, therefore, was not warranted. Nor can we fathom other circumstances by which defendant could have been compelled to participate in a corporeal lineup. Thus, it was proper to identify defendant at this stage of the investigation by photograph.

Defendant’s penultimate assertion involves the introduction by the prosecution of allegedly hearsay evidence to bolster the complainants’ in-court credibility. Officer Ickes testified on direct examination as follows:

"Q. All right. As best as you can recall, what did they [the complainants] tell you about the armed robbery?.
"A. The complainant stated that there was a knock at her front door, she went to the front door and asked who it was. He stated that he had just talked to the complainant’s husband and he was told to come on over, he would be right back in a few minutes, and to wait for him at the location.
"She let him in and she was then told that he had two guys outside with shotguns, and he pulled a revolver out and struck her in the head and took her through the house and collected—took the moneys [sic] that was in the location.”

Detective Belanger, the officer in charge, then testified regarding the complainants’ lineup identification:

"Q. All right. Now, in viewing the lineup how long did it take her [Mrs. Hill] to identify the defendant in this case, John Hoerl?
"A. It took her about two seconds; she was positive.
"Q. Okay. And when Mr. Kobylawski viewed the line, how Tong did it take him to identify the defendant in this case?
"A. It was the same thing; he was positive, just looked in, looked down the row and picked him.”

As these statements were offered to prove the truth of the matter asserted, they were clearly hearsay. However, we decline to find reversible error for two reasons. First, the erroneous admission of hearsay testimony is harmless error where the same facts are shown by other competent testimony. People v Vargas, 50 Mich App 738, 741-742; 213 NW2d 848 (1973), lv den, 392 Mich 815 (1974), People v Harrison, 49 Mich App 546; 212 NW2d 278 (1973), lv den, 392 Mich 779 (1974), People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972). Here, Beverly Hill had already testified as to defendant’s actions at the time of the robbery. Both complainants identified the defendant at trial, and both testified that they identified the defendant at a live lineup. In addition, Mrs. Hill attested to her previous photographic identification. The police officer’s characterization of the lineup recognition as "positive”, when viewed in light of the other extensive identification evidence, did not constitute reversible error. Second, no objection to the testimony was presented to the lower court, nor was there any request by counsel for a curative instruction. Absent these endeavors, the issue is not properly preserved for appellate review. People v Moss, 397 Mich 69, 70; 243 NW2d 254 (1976).

Defendant finally alleges that reference to the term "mug shots” at trial impermissibly suggested to the jury the possibility of a prior criminal record. In response to proper questioning on direct exam, Beverly Hill indicated that she went to the police station to look at "mug shots”. The prosecutor repeated the expression when he inquired if she had identified any of the photographs, but at no other time mentioned the phrase. No objection was proffered by defendant’s attorney, who, in fact, used the phrase himself on cross-examination. The testimony was not inherently prejudicial, nor was it deliberately injected into the proceedings. Under these circumstances defendant’s contention lacks merit. See People v Drew, 83 Mich App 57, 61; 268 NW2d 284 (1978).

Affirmed.

      1 "1. Subject to certain exceptions, identiñcation by photograph should not be used where the accused is in custody.

      "2. Where there is a legitimate reason to use photographs for identiñcation of an in-custody accused, he has the right to counsel as much as he would for corporeal identiñcation procedures.” People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973). (Footnotes omitted. Emphasis in original.)

       In Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976), it was held that at least three justices must agree to the reasoning in a case before that decision becomes obligatory precedent. "Plurality decisions in which no majority of the justices participating agree as to the reasoning” are not binding on this Court.

       Of particular interest is the following quote from the Cotton opinion:
      "The above-cited decisions, which have afforded a defendant the right to counsel at such a proceeding, [photographic identification] have limited this right to situations where the accused is in custody at the time. There is good reason for distinction. Initial identification by photograph has been widely and effectively used in law enforcement. The display of photographs has proven to be a valuable tool in apprehending offenders while at the same time 'sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.’ ” 38 Mich App at 768. (Citation omitted.)

        The Court added, however:
      "we cannot exclude the possibility that under unusual circumstances a suspect may have a right to counsel during a pretrial photographic identification though at the time he is not in custody.” Id. at 769. (Emphasis supplied.)
      The Cotton decision specifically noted that the police had already arrested the defendant, that he had appeared represented by counsel in two corporeal lineups prior to release, that the police had retained his car, and “apparently still felt he was their man”.
      "For these reasons we feel constrained to hold that in this particular situation defendant was entitled to be represented by counsel at the photographic identification even though he was not in custody at the time.” Id. at 770.

       To the extent that certain cases suggest that defendant is "readily available” so long as his whereabouts are known, or, if he has been released on bond pending another charge, e.g., People v Smalls, 61 Mich App 53, 59-60; 232 NW2d 298 (1975), People v Beasley, 55 Mich App 583, 585-586; 223 NW2d 77 (1974), we decline to follow them. In our opinion, unless a defendant can be apprehended, detained, and legally compelled to participate in a corporeal lineup, he is not "readily available”. The ability to arrest on the present charge would satisfy this requirement.

       We reject the prosecutor’s argument that MRE 801(d)(1) renders these statements nonhearsay. Under that rule a statement is excluded from the hearsay rule if:
      "The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him”.
      In People v Washington, 84 Mich App 750; 270 NW2d 511 (1978), the Court held that MRE 801(d)(1) allows a witness to testify concerning his own prior identification but does not allow a third party to testify regarding the identification of another person. See also, People v Sanford, 402 Mich 460, 484-489; 265 NW2d 1 (1978).


text:
    C. THORREZ INDUSTRIES, INC. v CIVIL RIGHTS COMMISSION
    Docket No. 78-537.
    Submitted October 10, 1978, at Lansing.
    Decided February 21, 1979.
    Plaintiff, C. Thorrez Industries, Inc., is an automatic screw machine company. It maintained two plants, one of which employed about 50 people, the other, only three or four. At the time in question plaintiff was looking for additional employees to set up and operate its screw machines, a job requiring a good deal of skill and about three years of training. To operate other machines in plaintiff’s business required little training. William Schoening was a long-time and valued screw machine operator. Sandra Fullerton, whose complaint to defendant, Civil Rights Commission, resulted in the instant action, was hired by plaintiff as a secondary machine operator. The wife of William Schoening telephoned Mr. Thorrez, president of plaintiff, to tell him that she did not want her husband working under the same roof with Sandra Fullerton. Mr. Thorrez related this conversation to Mr. Schoening, who explained to Mr. Thorrez that he would quit to keep peace in the family but acknowledge that he would stay on if Mrs. Fullerton were discharged. Mrs. Fullerton was discharged by plaintiff and was told that the reason was a personality conflict. She then filed a complaint alleging sex discrimination with the Civil Rights Commission, which issued a cease and desist order ordering her reinstated with full back pay. Plaintiff appealed to the Jackson Circuit Court which held that sex was not a factor in her discharge, Russell E. Noble, J. The Civil Rights Commission appealed. Held:

    1. In order for a woman to show a prima facie case of sex discrimination she must show she is a member of the class entitled to protection under the act and that, for the same or similar conduct, she was treated differently than a man.
    2. The decision to terminate Mrs. Fullerton rather than Mr. Schoening was based upon her level of skill and training and did not constitute sex discrimination.
    Affirmed without cost, interpretation of a statute being involved.
    Reference for Points in Headnote
    15 Am Jur 2d, Civil Rights §§ 103, 154 et seq.

      Civil Rights — Discrimination — Sex Discrimination — Evidence — Prima Facie Case — Disparate Treatment.
    A woman, to show a prima facie case of sex discrimination, must show that she is a member of the class entitled to protection under the act and that, for the same or similar conduct, she was treated differently than a man.

      Kelly, Kelly & Kelly, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael A. Lock-man, Assistant Attorney General, and Gary G. Kress, Assistant Attorney General, for defendant.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Per Curiam.

Defendant appeals as of right from a circuit court order entered on January 20, 1978. That order reversed the decision of the Michigan Civil Rights Commission and held that no sex discrimination occurred in the discharge of Sandra Fullerton from plaintiff’s employ.

The facts are not in dispute. Plaintiff is an automatic screw machine company with two plants. One, located in Jackson, Michigan, employed approximately 50 employees, while the other, located 15 miles away, employed three or four employees. The business is geared toward production from its automatic screw machines.

At the time in question plaintiff was seeking additional automatic screw machine operators and set-up men. To be able to set up and operate such machines requires approximately three years of training. To operate other machines in plaintiff’s business requires very little training.

Sandrá Fullerton had been hired by plaintiff in August of 1972. She worked as a secondary machine operator in plaintiff’s Jackson plant. Prior to her discharge on or about October 20, 1972, she satisfactorily performed her job and had received no discipline.

Sandra Fullerton’s discharge culminated from a series of events commencing with a phone call from Mrs. William Schoening to Albert Thorrez, president of C. Thorrez Industries. Mrs. Schoening’s husband worked for plaintiff as an automatic screw machine operator and set-up man in plaintiff’s Jackson plant. Mrs. Schoening informed Mr. Thorrez that her husband and Ms. Fullerton had had a "former relationship” and that she did not want her husband working under the same roof with Ms. Fullerton.

Subsequently, Thorrez called William Schoening into his office and informed him of the conversation with his wife. In response Mr. Schoening said he would quit his job to keep peace in the family. Faced with the loss of a valued employee, Thorrez asked Schoening if he would stay on if Ms. Fullerton were discharged. Schoening answered affirmatively. Thereafter, on October 20, 1972, Ms. Fullerton was discharged.

Subsequently, Ms. Fullerton filed a petition with the Michigan Department of Civil Rights. In an order dated July 27, 1976, that agency concluded that the action of Ms. Fullerton’s employer constituted unlawful discrimination on the basis of sex. Therefore, the agency issued a cease and desist order and ordered Ms. Fullerton reinstated with full back pay.

Plaintiff appealed this decision to circuit court. After a hearing on the matter the court ruled in an opinion dated January 11, 1978, that Ms. Fullerton’s sex was not a factor in her discharge. Rather, she was discharged in order to retain a skilled screw machine operator. Nor did the court find any discrimination in plaintiffs failure to transfer her to its other plant. In so ruling, the court accepted the testimony of Albert Thorrez who stated that no transfer would have been possible if Ms. Fullerton were a man, since there were no openings at the other plant.

The statute under which this action was brought, MCL 423.303a; MSA l7.458(3a) states:

"Sec. 3a. It is an unfair employment practice:
(a) For any employer, because any individual is between the ages of 18 and 60, or because of the sex of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment. Any such refusal to hire or discrimination shall not be an unfair employment practice if based on law, regulation, the requirements of any federal or state training or employment program or on a bona fide occupational qualification. It shall not be an unfair employment practice to refuse to select an individual over the age of 35 because of his age for an apprenticeship or an on-the-job training program intended to have a duration of more than 4 months.” (Emphasis added.)

The circuit court’s findings under this statute are reviewed pursuant to the "clearly erroneous” standard of GCR 1963, 517.1. Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 372-373; 263 NW2d 376 (1977).

In order to make a prima facie showing of sex discrimination a woman must show she was a member of the class entitled to protection under the act and that, for the same or similar conduct, she was treated differently than a man. See Civil Rights Comm v Chrysler Corp, supra, p 373. However, with regard to racial discrimination, the court in Civil Rights Comm v Chrysler Corp, supra, p 373 noted:

"The crux of a civil rights suit is that similarly situated people have been treated differently because of their race.”

The same is true where sex discrimination is alleged.

In the present case, plaintiff was faced with an irremediable dilemma. Due to circumstances not of his own making he had to terminate the employment of one of two employees. The fact that he chose to discharge the female employee, rather than the male employee, does not make out a case of sex discrimination. This is because the two employees were not "similarly situated”. Mr. Schoening was a highly-skilled, highly-trained automatic screw machine operator. Ms. Fullerton was a semiskilled secondary machine operator with little training. The circuit court found that the decision to terminate Ms. Fullerton was based upon her level of skill and training. As noted in Pond v Braniff Airways, Inc, 500 F2d 161, 165 (CA 5, 1974):

"Of course it is true * * * that where an employer can demonstrate no discrimination in the selection or advancement of employees, but rather that the employer in the best of faith merely weighed each person’s talents then choosing the man over the woman (or the woman over the man), no case is made out under Title VII.”

Therefore, we hold that the decision to terminate Ms. Fullerton, rather than Mr. Schoening, did not constitute discrimination on the basis of sex.

Defendant also contends that the decision to terminate Ms. Fullerton, as opposed to transferring her to plaintiffs other plant, constituted sex discrimination.

Plaintiffs president testified that there were no openings at the other plant and that he would not have transferred her if she were a man. This testimony was believed by the circuit judge and incorporated into his findings of fact. These findings are not clearly erroneous, GCR 1963, 517.1, and will not be disturbed.

We conclude that no sex discrimination resulted from plaintiffs failure to transfer Ms. Fullerton. Since there are no other employees who were terminated and not transferred by plaintiff, defendant is unable to point to any "similarly situated” male employee receiving disparate treatment from plaintiff. Even if there had been a similarly situated male employee, the circuit court’s findings indicate that no disparate treatment would have occurred. Under these circumstances, plaintiff was under no legal obligation to transfer Ms. Fullerton to another plant.

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

       This statute has since been repealed and replaced by a provision in the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. See specifically MCL 37.2202; MSA 3.548(202).

       The federal precedent, although not binding, is persuasive authority in this area. See Civil Rights Comm v Chrysler Corp, supra, p 375, fn 4.

       Plaintiff’s president also testified that he didn’t consider transferring Ms. Fullerton because no woman had ever applied to work at that plant and because the jobs there required heavy lifting. However, the circuit judge ruled that these were not the reasons for refusing to effect a transfer.


text:
    HUBERT v CITIZENS INSURANCE COMPANY OF AMERICA
    Docket No. 78-1335.
    Submitted November 13, 1978, at Detroit.
    Decided February 21, 1979.
    Leave to appeal applied for.
    Plaintiff, Ronald D. Hubert, was injured while driving a garbage truck, owned by the City of Farmington, for McCreedy Trucking Company, the garbage and rubbish collection contractor for the City of Farmington.
    Plaintiff recovered workmen’s compensation benefits from McCreedy and then sought to collect personal protection insurance benefits from the city’s no-fault insurer. Citizens Insurance Company of America paid the no-fault benefits to the plaintiff but reduced the no-fault benefits paid by the amount of workmen’s compensation benefits which were paid or payable. Plaintiff then brought an action against Citizens Insurance to recover the amounts deducted. The Oakland Circuit Court, Francis X. O’Brien, J., granted plaintiff’s motion for summary judgment finding the set-off provisions of the no-fault act unconstitutional. The defendant appeals, alleging (1) that the insurer did not have to pay any benefits to the plaintiff because workmen’s compensation was the plaintiff’s exclusive remedy and (2) that the trial court erred in holding the set-off provision unconstitutional. Held:

    1. An employee is entitled to receive no-fault benefits as well as workmen’s compensation benefits where the employee is injured while operating a motor vehicle owned by the employer. Workmen’s compensation is not the exclusive remedy.
    2. The set-off provision in the no-fault act is constitutional. The defendant was entitled to reduce the amount of benefits paid to the plaintiff by the amount of workmen’s compensation benefits received by the plaintiff.
    Reversed and remanded.
    1. Statutes — Automobiles — No-Fault Insurance — Workmen’s Compensation — Legislative Intent.
    The legislative intent, as expressed in the no-fault automobile insurance statute, was to allow an employee to sue his employer’s no-fault carrier in situations where the employee was injured while occupying a vehicle owned by the employer and to allow both workmen’s compensation recovery and no-fault recovery (MCL 500.3114[3]; MSA 24.13114[3]).

      Reference for Points in Headnotes

       New Topic Service Am Jur 2d, No-Fault Insurance § 22.

      2. Automobiles — Insurance — No-Fault Insurance — Workmen’s Compensation — Personal Protection Insurance — Set-Off — Statutes.
    Workmen’s compensation benefits received by an employee for injury suffered by the employee while operating a motor vehicle owned by his employer may be set off against personal protection insurance benefits paid by the no-fault insurer of the employer’s motor vehicle (MCL 500.3109[1]; MSA 24.13109[1]).

      Katz, Victor & Yolles (by Richard A. Lenter), for plaintiff.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark, for defendant.
    Before: N. J. Kaufman, P.J., and V. J. Brennan and Bashara, JJ.
   Per Curiam.

Defendant appeals as of right from a March 22, 1978, order granting summary judgment to plaintiff.

Plaintiff was injured on February 4, 1976, while driving a garbage truck for McCreedy Trucking Company, the City of Farmington’s garbage and rubbish collection contractor. The truck was owned by the City of Farmington.

Plaintiff recovered workers’ compensation benefits from McCreedy. Plaintiff then sought to collect no-fault personal protection insurance benefits from defendant, Citizens Insurance Company of America, the City of Farmington’s no-fault insurer. Defendant paid plaintiff the no-fault benefits; however, defendant deducted the sums which plaintiff was receiving as workers’ compensation pursuant to MCL 500.3109(1); MSA 24.13109(1).

Plaintiff then brought the present action to recover the amounts subtracted. Plaintiff moved for summary judgment, and for the purpose of that motion the parties stipuláted that plaintiff was an employee of the City of Farmington. The trial court granted plaintiff’s motion, finding MCL 500.3109(1); MSA 24.13109(1) unconstitutional.

On appeal defendant argues first that it should not have to pay any benefits to plaintiff, because workers’ compensation is plaintiff’s exclusive remedy. MCL 418.131; MSA 17.237(131). We disagree. We adopt the reasoning of Judge Allen’s dissent in Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), and hold that MCL 500.3114(3); MSA 24.13114(3) authorizes plaintiff to receive no-fault personal protection insurance benefits from defendant.

Secondly, defendant contends that the trial court erred in holding the set-off provision unconstitutional. This section provides:

"Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.” MCL 500.3109(1); MSA 24.13109(1).

The Supreme Court recently held the above provision to be constitutional, in a case involving social security benefits. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). Although O’Donnell was limited to its facts, i.e., a setoff of social security benefits, we perceive its reasoning as applying also to set-offs of workers’ compensation benefits.

If anything, the case for constitutionality of the set-off provision is stronger where workers’ compensation benefits are to be set off. The O’Donnell dissenters’ suggested distinction between contributory (e.g., social security) and noncontributory (e.g., workers’ compensation) governmental benefits makes this clear, as does Judge T. M. Burns’ language in O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487, 496; 245 NW2d 801 (1976):

"Section 3109(1) is very broad—it covers any collateral governmental source. No-fault systems in other states include collateral source set-off provisions, but in Illinois and Florida, for example, the set-off provisions apply only to workmen’s compensation benefits. It might be argued that the latter type of set off provision is reasonable because the workmen’s compensation benefits are provided without cost to the beneficiary, while private collateral source benefits are not. Cf. Grace v Howlett, supra, Chief Justice Underwood, dissenting. The argument is persuasive. Section 3109(1), however, is not limited to governmental benefits provided without cost to the beneficiary. The provision requires the reduction of recovery by benefits which are in a very real sense 'paid for’ by the 'insured’, such as under social security, or benefits which are in the nature of employee benefits to government employees and veterans.” (Citations omitted.) (Footnotes omitted.)

Since workers’ compensation benefits are not "paid for” by the employee, but rather by the employer and eventually the consumer, we see no basis for holding a setoff for such benefits to be unconstitutional. We are bound to follow O’Donnell and to reverse the judgment of the trial court.

Reversed and remanded for proceedings consistent with this opinion.

       McCreedy was obligated to provide workers’ compensation benefits under the terms of its garbage collection contract with the City of Farmington.

       “The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.”

       "An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.”


text:
    PEOPLE v McKINNEY
    Docket No. 78-1552.
    Submitted October 10, 1978, at Lansing.
    Decided February 21, 1979.
    Patrick W. McKinney was charged with two counts of involuntary manslaughter following an accident wherein his car collided with the rear of another car killing two of its occupants. After being bound over for a preliminary examination he filed a motion to suppress the results of a blood alcohol test performed the night of the accident. Motion denied, Oakland Circuit Court, William J. Beer, J. Defendant appeals by leave granted. On appeal, defendant contends that his consent to the blood test was obtained pursuant to Michigan’s implied consent statute and for this reason the results of the test would be inadmissible in a trial for manslaughter. The prosecution argues that the blood test was not administered pursuant to the implied consent statute and that its results are therefore admissible. Held:

    The results of blood tests are admissible in prosecutions for impaired or intoxicated driving under the implied consent statute. The results of blood tests are not admissible in prosecutions for manslaughter unless express disclaimers of reliance on the implied consent statute are made to both the driver and the doctor administering the test. The results of defendant’s blood test in this prosecution for manslaughter should have been suppressed since there was no evidence that he was apprised that the blood test was not being administered pursuant to the implied consent statute.
    Reversed and remanded.
    References for Points in Headnotes

       7 Am Jur 2d, Automobiles and Highway Traffic §§ 259, 260, 332, 333.
    29 Am Jur 2d, Evidence §§ 295, 830.

       61 Am Jur 2d, Physicians, Surgeons, and Other Healers §§ 155, 158.

       7 Am Jur 2d, Automobiles and Highway Traffic § 115.
    Suspension or revocation of driver’s license for refusal to take sobriety test. 88 ALR2d 1064.

       5 Am Jur 2d, Appeal and Error §§ 601, 602, 881.

       7 Am Jur 2d, Automobiles and Highway Traffic § 338.
    30 Am Jur 2d, Evidence § 1104.

      1. Automobiles — Intoxicating Liquors — Evidence — Blood Alcohol Tests — Implied Consent — Statutes.
    A person who operates a motor vehicle on the highways of this state is deemed to have consented to tests of his blood if he is arrested for driving a vehicle under the influence of intoxicating liquor or while his ability to so operate a vehicle has been impaired due to consumption of intoxicating liquor and the results of such blood tests are admissible into evidence (MCL 257.625a[l], 257.625c; MSA 9.2325[1][1], 9.2325[3]).
    2. Physicians and Surgeons — Blood Alcohol Tests — Implied Consent — Immunity From Liability — Negligence — Statutes.
    A physician performing blood tests under the implied consent statute is granted immunity from civil liability where the test is not performed in a negligent manner (MCL 257.625a[2]; MSA 9.2325[1][2]).
    3. Automobiles — Blood Alcohol Tests — Implied Consent — Driver’s License — Suspension or Revocation — Statutes.
    A person may refuse to submit to a blood test under the implied consent statute, but if he does, he must be advised that his refusal to submit to the blood test will result in the suspension or revocation of his driver’s license (MCL 257.625a[4]; MSA 9.2325[1][4]).
    4. Appeal and Error — Evidence — Admissibility of Evidence — Trial Court — Clearly Erroneous.
    Decisions of a trial court regarding the admissibility of evidence will not be disturbed on appeal unless those decisions are clearly erroneous.
    5. Evidence — Blood Alcohol Tests — Implied Consent — Disclaimer — Admissibility.
    The results of blood tests administered pursuant to the implied consent statute are admissible into evidence in prosecutions for impaired or intoxicated driving; however, blood test results are inadmissible in other actions, such as a prosecution for manslaughter, unless express disclaimers of reliance on the implied consent statute are made to both a driver and the doctor administering the test.

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

      James P. Lawson, P.C. (by David M. Lawson), for defendant.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   Per Curiam.

Defendant was charged with two counts of involuntary manslaughter, MCL 750.321; MSA 28.553, following an automobile accident in which he was involved. He was bound over after a preliminary examination held on July 29, August 1 and August 22, 1977. Subsequently, he filed a motion to suppress the results of a blood alcohol test performed the night of the accident. The motion was based upon the court file and preliminary examination transcript and no separate hearing was held thereon. The motion was denied on April 14, 1978. Leave to appeal was granted by this Court on May 22, 1978.

At 7:45 p.m. on June 9, 1977, defendant, age 17, was driving in a westerly direction on Eight Mile Road in the City of Southfield. His speed was far in excess of the 40 m.p.h. speed limit. Defendant’s car struck the rear of a Cadillac, causing the Cadillac to roll over and catch fire. The two occupants of the Cadillac were killed in the accident.

Shortly thereafter, Sergeant Norman Buskin of the Southfield Police arrived at the scene of the accident. He observed beer bottles all over the inside of defendant’s car. He also noted that defendant’s breath smelled of alcohol, his speech was incoherent and his eyes watery and bloodshot. He had no doubt that defendant was intoxicated. Since defendant was injured as a result of the accident, he was taken to Providence Hospital.

At 9:30 p.m. Officer Buskin arrived at the hospital for the purpose of obtaining a blood sample from defendant. Defendant was very upset at the time and was crying. Officer Buskin asked defendant to sign a form consenting to the blood test. He told defendant he had a right to refuse, that the results of the test could be used against him and that he had a right to secure legal counsel before submitting to any test. At first, defendant refused to consent to the blood test. Defendant asked what would happen if he refused and Officer Buskin replied that he would arrest defendant for manslaughter and withdraw the blood as evidence. After talking with his father, defendant signed the consent form.

The blood was drawn at about 10 p.m. by Dr. Martin Katz. Prior to this, Dr. Katz had been told that defendant had been involved in a serious accident and that there was a question as to whether he had been drinking. He was also told the blood sample was being taken in connection with a felony investigation. At trial Dr. Katz testified that defendant had definitely been drinking prior to being brought to the hospital.

Appellant first contends that defendant’s consent to the blood test was obtained pursuant to Michigan’s implied consent statute and that the results thereof are inadmissible in the present manslaughter conviction. The prosecution argues that the blood test was not administered pursuant to the implied consent statute and that its results are therefore admissible.

MCL 257.625c; MSA 9.2325(3) provides that a person who operates a motor vehicle on the highways of this state is deemed to have consented to tests of his blood if he is arrested for driving a vehicle under the influence of intoxicating liquor (DUIL) or while his ability to so operate a vehicle has been impaired due to the consumption of intoxicating liquor (DI). MCL 257.625a(l); MSA 9.2325(1)(1) provides that the results of such blood tests are admissible into evidnece. Subsection (2) of that same statute grants the physician performing such tests immunity from civil liability as long as the test is not performed in a negligent manner. MCL 257.625d; MSA 9.2325(4) permits a person to refuse to submit to such a test. However, subsection (4) of MCL 257.625a; MSA 9.2325(1) states that one so refusing must be advised that the refusal to submit to a blood test shall result in the suspension or revocation of their driver’s license.

This statutory scheme has been the subject of considerable case law in recent years. In People v Keen, 396 Mich 573; 242 NW2d 405 (1976), the Court held that the results of a blood test administered pursuant to these statutes are admissible only in a DUIL or DI prosecution. Subsequently in McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976), the Court held that a blood test administered pursuant to the "implied consent” scheme could not be used in a civil proceeding. However, the Court included the following proviso:

"We do not preclude a showing at trial that the officer in requesting that the hospital personnel administer a test made known to them that he was not making the request pursuant to the statute so that they would be aware that if they administered the test they could not claim the statutory protection from civil and criminal liability. Upon such a showing the question whether the statute occupies the field and supersedes the asserted common-law right would be properly presented and require resolution; absent such a showing, we intimate no opinion on the question.” McNitt, supra, at 391-392.

In People v Weaver, 74 Mich App 53; 253 NW2d 359 (1977), the Court was faced with the same question as is involved in the present case. They were asked to determine the nature of a consent given for a blood test in a negligent homicide case. The Court held that the consent there was given pursuant to the statute and that the test results were thus inadmissible. In so concluding, the Court relied upon the fact that the hospital personnel were never told the request for the test was made other than pursuant to the statute. Furthermore, the consent form used by the police in that case was designed for use under the implied consent statute. The Court also gave weight to the defendant’s assumption that a refusal to submit to the test would result in his losing his license, the very sanction set forth in the statute. The Court concluded its analysis by stating:

"As the Supreme Court in McNitt held that a blood alcohol test is obtained pursuant to the statutory authority absent express disclaimer to the hospital personnel asked to administer that test, so do we hold that consent to a blood alcohol test obtained from a conscious driver will be considered to have been obtained under color of the statutory authority absent express disclaimer to the driver of reliance on the statute and upon statutory penalties, and advice that the statutory limits on the use to which such test results may be put is inapplicable.” Weaver, supra, at 63.

Thus, when read together, McNitt, supra and Weaver, supra hold that a consent to a blood test will be deemed made pursuant to the implied consent statute unless express disclaimers of reliance thereon are made to both the defendant and the doctor administering the test. In reviewing questions regarding the admissibility of evidence, the decision of the trial court is not to be disturbed unless clearly erroneous. People v McKinney, 65 Mich App 131, 141; 237 NW2d 215 (1975).

In the present case, the trial judge’s ruling denying the motion to suppress implicitly held that the blood test was not administered pursuant to the statute. Such a finding is not supported by the record. There is no evidence that defendant was apprised that the blood test was not being administered pursuant to the statute, as required by Weaver, supra. Under these circumstances we must conlude that the consent was obtained pursuant to the statute. Therefore, the results of the blood test in this manslaughter prosecution should have been suppressed. People v Keen, supra.

We come to this conclusion as a result of the Supreme Court’s pronouncements in this area, not because we necessarily favor such a result. However, the prosecution is still free to prove its case through the testimony of other witnesses.

Reversed and remanded.

       Since our resolution of this issue requires suppression of the blood test evidence, we need not address defendant’s other arguments in support of the same conclusion.


text:
    KRUEGER v KRUEGER
    Docket No. 78-1637.
    Submitted November 8, 1978, at Lansing.
    Decided February 21, 1979.
    Leave to appeal applied for.
    Beverly I. Krueger and Charles H. Krueger were divorced. Incorporated into the divorce judgment was an agreement reached by the parties regarding alimony, property rights, and custody and support of the couple’s son. As part of the agreement, Charles was to name the son, Michael A. Krueger, as beneficiary of a life insurance policy until Michael reached the age of 21 or graduated from college. When Michael was 18, Charles changed the beneficiary, naming his mother, Mary S. Krueger. A year later, Charles died. Michael and Mary each claimed the proceeds of the insurance policy. Michael petitioned the circuit court to enforce his right to the proceeds under the agreement and judgment of divorce. The insurance company filed an interpleader action, seeking a determination of the rights of Michael and Mary to the proceeds, and deposited the proceeds with the court. The interpleader action was consolidated with the petition and the Saginaw Circuit Court, Joseph G. De-Francesco, J., held that the agreement was enforceable and that Michael was entitled to the proceeds of the insurance policy. Mary S. Krueger appeals. Held:

    Even though the circuit court has no power in a divorce case to compel the parties to convey a property interest to a third party, even a child of the parties, or to adjudicate claims of third parties, the court does have the power to confirm a settlement made by the parties. An agreement of the parties embodied in the judgment of divorce is enforceable even though the court would have had no power to order the same disposition in a contested case. In this case the obligation to name Michael as the beneficiary was voluntarily undertaken by Charles and not tied to or conditioned upon any other provisions of the agreement. The obligation is enforceable against the named beneficiary, Mary S. Krueger.

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation §§ 241, 937.

       24 Am Jur 2d, Divorce and Separation § 884.
    What law governs validity, effect, and construction of separation or property settlement agreement. 18 ALR2d 760.

       24 Am Jur 2d, Divorce and Separation §§ 920, 932.

      AfiSrmed.
    1. Divorce — Courts — Jurisdiction — Conveyance of Property — Third-Party Claims.
    A circuit court has no jurisdiction in a divorce action to compel a party to convey property or a property interest to a third party, even a child of the parties, or to adjudicate claims of third parties.
    2. Divorce — Settlements — Courts.
    The parties in a divorce case may make a settlement of their interests which the court may confirm even if the court would be without power to make such a disposition of the interests if the case were contested.
    3. Divorce — Agreement of Parties — Enforcement of Agreement.
    A father’s obligation to name his son as the beneficiary of a life insurance policy until the son reached the age of 21, which was part of an agreement entered into between the parents in a divorce action and subsequently incorporated into the judgment of divorce, and which was undertaken by the father voluntarily, may be enforced in a subsequent action.

      Joseph, Wolf & Weinstein, P.C. (by Jeffrey J. Endean), for Mary S. Krueger.

      Walter Martin, for Michael A. Krueger.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Beverly and Charles Krueger were divorced in August of 1970. During the pendency of the suit the parties reached an agreement covering all matters pertaining to alimony, property rights, and custody and support of their adopted son. The agreement was dictated on the record and approved by the circuit court. The terms of the agreement were incorporated in the judgment of divorce subsequently entered.

Part of the agreement incorporated in the judgment required Charles to change the beneficiary on a group life insurance policy obtained through his employer from his former wife, Beverly, to their son Michael Krueger, until Michael reached the age of 21 years or graduated from college. This obligation was not tied to the support duties or otherwise conditioned.

Charles made the change in beneficiary as agreed. However, on April 7, 1976, Charles changed the beneficiary to Mary S. Krueger, his mother. At that time Michael was 18 years old. Charles died on May 21, 1977. On that date his mother was the named beneficiary.

Both Michael and Charles’ mother claimed the proceeds of the life insurance policy, amounting to some $43,100. Michael filed a petition in the divorce action seeking to enforce his right to the proceeds under the agreement and judgment. The insurance company filed an interpleader action in the same circuit to determine the rights to the insurance proceeds between the contesting parties. After the proceeds were deposited in court, the insurance company was discharged from liability and the interpleader action was consolidated with the petition in the divorce case.

No evidence was introduced in the court below. The only question submitted was whether the oral agreement, as embodied in the judgment, requiring Charles to maintain Michael as the beneficiary was enforceable against the named beneficiary. The trial court, in a written opinion, concluded that it was. Mary S. Krueger appeals. We affirm.

We have no quarrel with the proposition that the circuit court has no jurisdiction in a divorce case to compel a party to convey property or a property interest to a third person, even a child of the parties, or to adjudicate claims of third parties. The Supreme Court has so held on many occasions. See, e.g., Yedinak v Yedinak; 383 Mich 409; 175 NW2d 706; 63 ALR3d 360 (1970), Rex v Rex, 331 Mich 399; 49 NW2d 348 (1951). Were this an appeal or separate suit by the husband attacking the judgment after such a disposition had been forced on him, we would probably be required to hold in his favor. Flynn v Flynn, 367 Mich 625; 116 NW2d 907 (1962).

But, neither of those propositions is applicable here. The Supreme Court has also recognized that the parties in a divorce case may make a settlement of their interests which the court could confirm even if it could not make such a disposition if the case were contested. Newton v Security National Bank of Battle Creek, 324 Mich 344; 37 NW2d 130 (1949). In our view, this is what occurred here. The wife took no alimony and the child support was in an amount less than that recommended by the Friend of the Court. She gave up something she was entitled to in exchange for a benefit to her child. Under these circumstances many courts have held that the agreement embodied in the judgment will be enforced even if the court would have had no power to order the same disposition in a contested case. Anno: Divorce: Provision in Decree That One Party Obtain or Maintain Life Insurance for Benefit of Other Party or Child, 59 ALR3d 9, § 10, p 44. Cf. Ovaitt v Ovaitt, 43 Mich App 628; 204 NW2d 753 (1972) (dealing with post-majority support under an agreement).

It is also important to note that the person challenging the divorce judgment and the underlying agreement was not a party to it. Under the circumstances it would be improper to allow this divorce settlement to be collaterally attacked after the husband has accepted all the benefits which he could obtain under it, but relieving him of his obligation. See, Newton, supra, at 357, Binben v Continental Casualty Co, 9 Mich App 97; 155 NW2d 883 (1957) (second wife could not collaterally attack a judgment requiring the husband to designate the children as beneficiaries). See also, White v Michigan Life Insurance Co, 43 Mich App 653; 204 NW2d 772 (1972).

It does not seem important, as contended by appellant, that the naming of Michael as beneficiary was not tied to the support obligation. Cases in which the insurance provision was tied to the support obligation and intended only to secure that obligation are not in point. Gray v Independent Liberty Life Insurance Co, 57 Mich App 590, 594; 226 NW2d 574 (1975), and Smith v John Hancock Mutual Life Insurance Co, 65 Mich App 193, 196; 237 NW2d 244 (1975), each contained language to the effect that it would be beyond the power of the circuit court to "compel” the husband to maintain the children as beneficiaries beyond that required to secure the support obligation. Those cases were relying on the court’s jurisdiction to order support for children under MCL 552.17a; MSA 25.97(1), to partly uphold the insurance clause of the judgment. But, here the husband was not compelled to keep the son as beneficiary; he voluntarily undertook the obligation to name Michael as beneficiary until he reached 21, without reference to support obligation. The two points were not connected by the parties in their agreement. The obligation, voluntarily undertaken, may be enforced against the named beneficiary in a subsequent action.

Affirmed. Costs to appellee.