text:
    FEDERAL KEMPER INSURANCE COMPANY v THE WESTERN INSURANCE COMPANIES
    Docket No. 44335.
    Submitted February 5, 1980, at Grand Rapids.
    Decided April 24, 1980.
    Donald Krzesowiak was injured while a passenger in a vehicle driven by Jon F. Smith who was insured with Federal Kemper Insurance Company and Federal Mutual Insurance Company. The Western Insurance Companies insured Donald’s brother, with whom Donald was domiciled at the time of the accident. Both parties refused payment upon the premise , that the other was primarily liable under the no-fault insurance statute. The Federal companies finally agreed to provide benefits and then either to arbitrate or litigate the legal issues with Western. The Federal companies paid $9,914.15, with an expected exposure of over $10,000. Western refused to assume responsibility or to provide benefits. The Federal companies brought an action against Western in Presque Isle Circuit Court. Accelerated judgment for defendant on the ground that the action was barred by the one-year statute of limitations for recovery of personal protection benefits in the no-fault act and summary judgment for defendant for failure to state a claim upon which relief could be granted was granted, Joseph P. Swallow, J. Plaintiffs appeal. Held:

    1. The proper action in this case is one in equity for subrogation. An insurer becomes subrogated to the rights of an insured where it pays a claim and its liability is arguably secondary to that of a primary insurer. The no-fault act does not preempt plaintiffs’ claim for equitable relief as subrogees.

      References for Points in Headnotes
    [1] 44 Am Jur 2d, Insurance §§ 1841, 1842.
    [2] 44 Am Jur 2d, Insurance § 1826.
    Right to subrogation, as against primary insurer, of liability insurer providing secondary insurance. 31 ALR3d 1324.
    [3] 61 Am Jur 2d, Pleading § 229 et seq.

    73 Am Jur 2d, Summary Judgment § 29.
    [4] 44 Am Jur 2d, Insurance §§ 1826, 1849.
    Right to subrogation, as against primary insurer, of liability insurer providing secondary insurance. 31 ALR2d 1324.
    [5] Am Jur 2d New Topic Service, No-Fault Insurance § 9.
    Validity and construction of no-fault automobile insurance plans. 42 ALR3d 229.

      2. Plaintiffs pleaded sufficient facts to state a claim for subrogation as the complaint reasonably informed defendant of the cause it must defend.
    3. Where an insurance company becomes subrogated to a claimant’s cause of action against another insurance company, it is a real party in interest and an action by one insurer against the other is entirely proper. Plaintiffs were real parties in interest.
    4. A subrogated insurer is merely substituted for its insured. Since the insured’s action was barred by the one-year statute of limitations, it would be inequitable to afford a subrogated insurer the benefit of a more liberal statute of limitations for an action in quasi-contract. Defendant denied liability ab initio and never gave plaintiffs or the insured any reason to believe it would pay the claim. Yet plaintiffs allowed almost three years to elapse before filing suit. Accelerated judgment was properly granted.
    Affirmed.
    1. Debtor and Creditor — Money Paid — Debt of Another — Volunteers — Relationship to Debt — Controlling Equities.
    An action for money paid does not lie in all cases where one pays the debt of another; a volunteer may not recover because there must be a relationship out of which one is required to pay a debt which the other ought to pay and the circumstances must be such as to raise controlling equities in favor of the payer or against the real debtor.
    2. Insurance — Money Paid — Subrogation.
    An insurer becomes subrogated to the rights of the insured where it pays a claim and its liability is arguably secondary to that of a primary insurer; resorting to subrogation in such an instance is the preferable method of handling the dispute because it permits an injured person to recover for his injuries without delay while the insurers thereafter iron out their respective liabilities.
    3. Pleading — Summary Judgment — Sufficiency of Complaint.
    A complaint is sufficient-to resist a motion for summary judgment where it reasonably informs a defendant of the nature of the cause which must be defended.

      4. Insurance — Claims — Defense and Settlement — Subrogation — Parties in Interest — Actions Between Insurers.
    An insurance company which defends a claimant and pays a settlement becomes subrogated to the claimant’s cause of action against another insurance company on that claim; it is a real party in interest and the action by one insurer against the other is entirely proper.
    5. Insurance — Automobiles — No-Fault — Limitations of Actions — Subrogation — Equity.
    The no-fault act does not state specifically whether the one-year statute of limitations for bringing an action is applicable to a subrogation claim by an insurer; however, a subrogee acquires no greater rights than those of his subrogor and a subrogated insurer is merely substituted for its insured and where the insured’s action would have been barred by the one-year statute it would be inequitable to afford a subrogated insurance company the benefit of a more liberal statute of limitations for an action in quasi-contract.

      Carpenter, Fenner, Barney & Hoffman, for plaintiffs.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Per Curiam.

Plaintiffs appeal as of right from an order of the trial court entered March 21, 1979, granting defendant accelerated judgment under GCR 1963, 116.1(5) on the ground that the instant action was barred by the one-year statute of limitations for recovery of personal injury protection benefits in the no-fault act, MCL 500.3145; MSA 24.13145, and summary judgment under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted.

The lawsuit herein arose out of a one-car accident which occurred on October 2, 1973. In that accident, Donald Krzesowiak was injured while a passenger in a vehicle driven by plaintiffs’ insured, Jon Forrest Smith, now deceased. According to plaintiffs, defendant was also potentially liable as the primary insurer since it insured Donald Krzesowiak’s brother with whom Donald was domiciled at the time of the accident. Initially, both parties refused payment upon the premise that the other was primarily liable under the no-fault insurance statute, MCL 500.3101 et seq.; MSA 24.13101 et seq. After both parties were contacted by the Michigan Insurance Commissioner, plaintiffs agreed to provide benefits and then either arbitrate or litigate legal issues with defendant. Thus far, plaintiffs allege they have paid $9,914.15 in personal injury protection benefits and expect to pay additional benefits, so that the total will exceed $10,000. Although plaintiffs demanded that defendant assume responsibility for payment of benefits, as defendant continued to refuse to provide benefits, plaintiffs filed the instant action on September 29, 1976.

The first issue is whether the trial court erred in granting defendant summary judgment on the grounds that the no-fault act preempts plaintiffs’ claim for equitable relief, that plaintiffs have not alleged sufficient facts to maintain an action in quasi-contract and that plaintiffs are not the real parties in interest.

In Maryland Casualty Co v H A Moss & Son, Inc, 276 Mich 219, 229-230; 267 NW 819 (1936), a worker’s compensation insurer tried unsuccessfully to recover in an action of quasi-contract against the employer for money paid to an injured employee after the insurer had given the employer notice that it was terminating the insurance contract. There the Court recognized the following principles as limiting recovery in an action for unjust enrichment:

"The action for money paid does not lie in all cases where one pays the debt of another. There must be a relationship out of which one is required to pay a debt which the other ought to pay. So a volunteer may not recover. 2 RCL p 776. And the circumstances must be such as to raise controlling equities in favor of the payor or against the real debtor. While one may have a right of action if he is required to pay by reason of the fault of the other (Van Santen v Standard Oil Co, 81 NY 171), it is held he may not recover if his liability to pay arises out of his own negligence or misconduct and without fault of the other (Hungerford v Scott, 37 Wis 341; Harris v Champion, 4 NJ Law, 152), but negligence will not always bar recovery (Treat v Craig, 135 Cal 91 [67 Pac 7] Rees v Eames, 20 Ill 282 [71 Am Dec 267]; 41 CJ p 13).”

In balancing the equities in the instant case, we are not blind to the fact that though plaintiffs are trying to recover for personal injury benefits they paid under the no-fault act, they are bringing the instant action in quasi-contract solely to avoid the one-year statute of limitations in the act, MCL 500.3145(1); MSA 24.13145(1).

Further recognizing our discretion in granting equitable relief, we believe the proper action here is one in equity for subrogation. In Farmers Ins Group v Progressive Casualty Ins Co, 84 Mich App 474, 484; 269 NW2d 647 (1978), this Court held that where an insurer, whose liability is arguably secondary to that of a primary insurer, pays the claim, it becomes subrogated to the rights of the insured. Under these circumstances the Court held that a separate suit for "indemnification” is the preferable method of handling the dispute "since the injured person recovers for his injuries without delay while the insurers thereafter iron out their respective liabilities”.

Although plaintiffs in their complaint did not mention the term "subrogation”, they pleaded sufficient facts to state a claim for subrogation as the complaint reasonably informed defendant of the nature of the cause it must defend. See Wynn v Cole, 68 Mich App 706, 712-713; 243 NW2d 923 (1976). Therefore, the trial court erred in granting summary judgment under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted. Alternatively, plaintiffs should have been allowed to amend their complaint under GCR 1963, 118 to plead subrogation.

The trial court also erred in holding that plaintiffs cannot institute this lawsuit because they are not the real parties in interest under GCR 1963, 201.2. In a comparable situation in Farmers Ins Group, supra, this Court held that where one insurance company defended the claimant and paid the settlement, it was subrogated to her cause of action against the other insurance company and the action by one insurer against the other was entirely proper.

The next issue is whether the trial court erred in granting accelerated judgment for defendant on the ground that plaintiffs did not file the instant action within the one-year statute of limitations in the no-fault act, MCL 500.3145(1); MSA 24.13145(1). The section does not state specifically whether it is applicable to a subrogation action by an insurer.

In Davis v Farmers Ins Group, 86 Mich App 45, 48; 272 NW2d 334 (1978), this Court held that the provision created a one-year statute of limitations and stated that the provision does not unduly restrict access to the courts, but rather "its effect is to encourage those with a claim against their insurance company to bring the matter to court while it is fresh. It differs from statutory notice provisions which trap unwary litigants who have claims which are brought within the time limited, but without proper notice”.

Because we have decided that plaintiffs’ action is more properly denominated a claim for subrogation, we note the principle, set forth by the court in Northwestern Mutual Ins Co v Jackson Vibrators, 402 F2d 37, 40 (CA 6, 1968), that:

"A subrogee acquires no greater rights than those possessed by his subrogor and the subrogated insurer is merely substituted for his insured. Couch on Insurance 2d, § 61.36; Indemnity Ins Co of North America v Otis Elevator Co, 315 Mich 393, 24 NW2d 104, 71 ALR 266 (1946). This is true whether subrogation is equitable or conventional as in the instant case pursuant to a clause in the insurance contract. General Acc F & L Assur Corp, Ltd v Finegan & Burgess, Inc, 351 F2d 168 (6th Cir, 1965), Hardware Dealers Mutual Insurance Co v R H Hidey, Inc, 349 Mich 490, 84 NW2d 795 (1957).”

See also Foremost Life Ins Co v Waters, 88 Mich App 599, 603; 278 NW2d 688 (1979).

In Home Ins Co v Rosquin, 90 Mich App 682; 282 NW2d 446 (1979), this Court held that where an insurance company had paid property protection insurance benefits to its insured but did not sue defendant for subrogation within the one-year statute of limitations in MCL 500.3145(2); MSA 24.13145(2), the action was barred. The Court stressed that although this result may appear harsh, the statute is clear and "plaintiff is an insurance company itself and is presumably well aware of the much-publicized insurance law of this state”. Id, 686.

In the case at bar, defendant never gave plaintiffs or the insured any reason to believe it would pay the claim; on the contrary, defendant denied liability ab initio. Yet plaintiffs allowed almost three years to elapse before filing this lawsuit. It is clear that if the insured had followed this course of procedure, his action would have been barred by the one-year limitation in the statute. In this respect, it would be inequitable to afford plaintiffs the benefit of the more liberal statute of limitations for an action in quasi-contract. Doing so would thwart the legislative intent of the no-fault act to give quick notice of claims and provide prompt payment. Therefore, we hold that the trial judge did not err in granting defendant accelerated judgment on the basis of the one-year limitation in the no-fault statute.

Affirmed.

       Although the Court in Farmers Ins Group, supra, stated in certain portions of the opinion that plaintiffs claim was for "indemnification”, we believe the term "subrogation” more accurate since plaintiffs cause of action was clearly the latter. See generally 6A Apple-man, Insurance Law and Practice, §§ 4051-4057.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v GRIMMETT
    Docket No. 44402.
    Submitted March 11, 1980, at Lansing.
    Decided April 24, 1980.
    James Grimmett was convicted of the possession of heroin, Saginaw Circuit Court, Fred J. Borchard, J. The police were seeking suspects in a stolen property ring and had warrants for approximately 130 persons, many of whom were young black males. Defendant, a young black male, was stopped in a high crime area in early morning while walking along a sidewalk. When the police determined that defendant had no connection with the stolen property ring, they halted their inquiry regarding that subject matter. The police then observed defendant walking away with his left arm held stiffly against his body. One officer noted a small object in defendant’s left hand and thought it might be a gun. The police then approached defendant again to inquire about the object. Defendant responded to the officers’ question by dropping a vial of heroin which was seized by the police. After dropping the vial defendant reached for his coat pocket. The officers believed he was reaching for a gun. In a pat-down search the officers discovered a paper bag of drug paraphernalia which was also seized. Defendant appeals. On appeal, defendant challenges the initial stop by the police and admission of the seized heroin as evidence at his trial Held:

    The police were justified in questioning defendant to determine his name and destination. Once they determined that defendant had no connection with the stolen property ring, they properly halted their inquiry regarding that subject matter. However, when defendant walked away with his arm held stiffly against his body and with a small object resembling a gun in his left hand, a new unrelated set of circumstances had arisen — carrying a weapon — and the police properly pursued defendant for further questioning. Defendant’s activities were sufficiently suspicious to justify the isolated question regarding what he was carrying. When defendant dropped the vial of heroin in answer to the question, it was proper for the police to seize it. When defendant reached for his coat pocket, he could have been reaching for a gun and the pat-down search was a reasonable measure undertaken to protect the officers and any passersby. The paper bag of drug paraphernalia discovered during the search was properly seized. The trial court’s ruling on defendant’s motion to suppress evidence was not clearly erroneous.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 797 et seq.

    [2] 68 Am Jur 2d, Searches and Seizure §§ 56, 58.
    [3-5] 68 Am Jur 2d, Searches and Seizures §§ 56, 58.
    [5] 21 Am Jur 2d, Criminal Law § 349.

      Affirmed.
    1. Appeal — Criminal Law — Evidence — Suppression of Evidence — Clear Error. '
    A trial court’s ruling on a motion to suppress evidence will not be reversed unless it is clearly erroneous; a ruling is clearly erroneous where the reviewing court is firmly convinced that a mistake has been made.
    2. Criminal Law — Investigative Stops — Identity — Information on Crimes.
    Police officers may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest; such stops may be made to determine a person’s identity or to obtain information on crimes.
    3. Criminal Law — Investigative Stops •— Illegal Detention — Unanticipated Separate Circumstances — Independent Suspicions — Further Questioning.
    The police must stop on-the-street questioning of a person where any possible link to criminal activity on his part has ceased; however, where a new and unrelated set of circumstances gives rise to the possibility of an ongoing crime this independently suspicious and unanticipated occurrence allows the police to pursue the person for further questioning about it.
    4. Criminal Law — Investigatory Stops — Suspicion of Crime — Reasonableness of Stop — Proof — Arrest — Probable Cause.
    A police officer is authorized to stop an individual where he has reasonable suspicion that a crime has been or is taking place and as long as he can articulate specific reasonable facts warranting the stop, the stop is valid; the quantum of proof necessary for this type of investigatory stop is significantly less than the probable cause necessary for an arrest.

      5. Criminal Law — Investigatory Stops — Suspicious Circumstances — Right to Question Citizens — No Obligation to Answer.
    A policeman may stop a citizen to request a satisfactory explanation of any suspicious circumstances; however, the citizen is under no obligation to reply.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.

      Reinert & Reinert, for defendant on appeal.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Following a bench trial, defendant was convicted of possession of heroin, contrary to MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He now appeals as of right, challenging the admission of the seized heroin.

A trial court’s ruling on a motion to suppress evidence will not be reversed unless it is clearly erroneous. People v Young, 89 Mich App 753, 763; 282 NW2d 211 (1979). A ruling is clearly erroneous when the reviewing court is firmly convinced that a mistake has been made. People v Goss, 89 Mich App 598, 601; 280 NW2d 608 (1979).

In the instant case, police observed defendant, a young black male, walking along the sidewalk in a high crime area in the early morning hours. The police were seeking suspects in a stolen property ring and had warrants for approximately 130 persons, many of whom were young, black males. Defendant first challenges the initial stop by police to determine if he was one of those suspects.

Police officers may "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest”. Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). It is well settled that such stops may be made to determine a person’s identity, Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), People v Harold Williams, 63 Mich App 398, 403; 234 NW2d 541 (1975), or to obtain information on crimes. Id., People v DeFillippo, 80 Mich App 197, 202; 262 NW2d 921 (1977), rev’d on other grounds, 443 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979), People v Jeffries, 39 Mich App 506, 511; 197 NW2d 903 (1972).

It is clear then that the police were justified in questioning defendant to determine his name and destination. Once the police determined that defendant had no connection with the stolen property ring, they properly halted their inquiry regarding that subject matter. Harold Williams, supra, 402-403.

Following this line of questioning, the police observed defendant walking away with his left arm held stiffly against his body. One officer noted a small object in defendant’s left hand and thought that it might be a gun. The police then approached defendant again to inquire about the object.

At this point the questioning surrounding defendant’s possible link to the stolen property ring had ceased. A new, unrelated set of circumstances had arisen — a possibility of an ongoing, carrying-of-a-weapon offense — and the police properly pursued defendant for further questioning. See People v Martin, 94 Mich App 649; 290 NW2d 48 (1980). This was not an after-found justification to pursue the original subject matter as disapproved in People v Dixon, 85 Mich App 271, 277; 271 NW2d 196 (1978), but was an independently suspicious and unanticipated occurrence.

The police are authorized to stop an individual where there is a reasonable suspicion that crime has been or is taking place. People v Lillis, 64 Mich App 64, 70; 235 NW2d 65 (1975), People v Hutton, 50 Mich App 351, 361; 213 NW2d 320 (1973). This quantum of proof is significantly less than the probable cause necessary for arrest. See Martin, supra, Harold Williams, supra. As long as the officers can articulate specific, reasonable facts warranting the stop, the stop is valid. Terry, supra, 21.

In the instant case, the officers testified that defendant continued to walk away from them throughout the entire questioning. He was described as holding his stiffened left arm close to his body as if he "was trying to hide something”. The police officer in the best position for observation said he thought that the small object in defendant’s hand might be a gun. We believe that defendant’s activities were sufficiently suspicious so as to justify the isolated question regarding what he was carrying. See Jeffries, supra.

While a policeman is free to request a satisfactory explanation of any suspicious circumstances, a citizen is under no obligation to reply. Davis v Mississippi, 394 US 721, 727, fn 6; 89 S Ct 1394; 22 L Ed 2d 676 (1969). People v Arnold Smith, 87 Mich App 730, 736; 276 NW2d 481 (1979). In the instant case, defendant "responded” to the officer’s question by dropping the object. We cannot say that it was clearly erroneous for the lower court to conclude that defendant had abandoned the dropped object — a vial of heroin — thus, it was proper for police to seize it. See Hester v United States, 265 US 57; 44 S Ct 445; 68 L Ed 898 (1924), People v Kirchoff, 74 Mich App 641, 645-647; 254 NW2d 793 (1977).

After the instant defendant was ordered to stop and dropped the object, he reached for his coat pocket. The officers testified that they believed he was reaching for a gun. Goss, supra, 602. See People v White, 84 Mich App 351; 269 NW2d 598 (1978). Their pat-down search which followed was a reasonable measure undertaken to protect the officers and any passerby. Terry, supra, 23-26. Since the officers testified that the paper bag of paraphernalia discovered during the search felt like a possible weapon, it was properly seized from defendant’s person.

Affirmed.

       It is clear then that the officers had only a limited right to inquire into these newly suspicious circumstances. Defendant could readily have refused to answer, Davis v Mississippi, 394 US 721, 727, fn 6; 89 S Ct 1394; 22 L Ed 2d 676 (1969), People v Arnold Smith, 87 Mich App 730, 736; 276 NW2d 481 (1979), or could have offered some plausible explanation for his behavior. At that point, lacking the probable cause to make an arrest, the officers would have had to let defendant walk away. People v Harold Williams, 63 Mich App 398, 403-404; 234 NW2d 541 (1975). See People v Rivers, 42 Mich App 561; 202 NW2d 498 (1972). It was only defendant’s response of reaching for his coat pocket and perhaps a gun that permitted the officers to continue the confrontation through the Terry, supra, pat-down search.


text:
    TOMPKINS v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 44594.
    Submitted January 7, 1980, at Detroit.
    Decided April 24, 1980.
    Shirley Tompkins (hereinafter plaintiff!, a recipient of Aid to Families with Dependent Children (hereinafter ADC) purchased a home in the City of Detroit assuming an F.H.A. mortgage with monthly payments in excess of the maximum Department of Social Services (hereinafter DSS) shelter allowance. Prior to . purchasing the home, plaintiff had been assured by her assistance payment worker that a request by plaintiff for excess shelter funds would be approved. At that time, excess shelter funds could be granted only after prior supervisory approval and if they were necessary to preserve the client’s equity in the house. In addition, a "shelter cost verification form”, filled out by the mortgage company, had to accompany the request for excess shelter funds. The mortgage company returned plaintiffs verification form some four months after the initial transaction. After receiving the complete request, the DSS supervisor returned it to the DSS worker for further investigation. It was not until six months had passed from the time of down payment that the worker resubmitted plaintiffs request to the supervisor. However, four days earlier, a new DSS regulation became effective which required 12 monthly rent payments before excess shelter funds could be granted to an applicant, thus if the new regulation were applied to plaintiffs request, she would be denied the excess funds. The DSS denied plaintiffs request based on the new regulation. The plaintiff appealed that ruling to the Wayne Circuit Court, alleging detrimental reliance and seeking lost equity, wherein Theodore Bohn, J., affirmed the DSS decision. Plaintiff appeals. Held:

    1. A new restrictive regulation by the Department of Social Services will not be used to bar an applicant for ADC supplemental shelter funds from receiving such benefits under a prior regulation, even though the new regulation became effective before a final decision was made on the application, if the delay in processing the application was the primary responsibility of the Department of Social Services.

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law § 549.
    [2] 79 Am Jur 2d, Welfare Laws § 108.
    [3] 79 Am Jur 2d, Welfare Laws § 14.
    [4] 2 Am Jur 2d, Administrative Law § 776.

      2. The Court of Claims is the proper forum for actions against the Department of Social Services for consequential damages based on detrimental reliance.
    Reversed and remanded.
    1. Administrative Law — Appeal — Administrative Law Judge.
    An administrative law judge’s findings are to be given great deference by an appellate court if supported by substantial evidence on the whole record since, as the trier of fact, the administrative law judge had the opportunity to hear testimony and view the witnesses.
    2. Administrative Law — Social Services — Review — Substantial Evidence Test.
    The substantial evidence test applies to the review of social services cases; such test requires evidence which a reasoning mind would accept as sufficient to support a conclusion but, while consisting of more than a mere scintilla of evidence, may be somewhat less than a preponderance of the evidence.
    3. Administrative Law — Social Services — ADC Benefits — New Regulations.
    A new restrictive regulation by the Department of Social Services should not be used to bar an applicant for ADC supplemental shelter funds from receiving such benefits under a prior regulation, even though a new regulation became effective before a final decision was made on the application, if the delay in processing the application was the primary responsibility of the Department of Social Services.
    4. Courts — Court of Claims — Social Services.
    The Court of Claims is the proper forum for actions against the Department of Social Services for consequential damages based on detrimental reliance (MCL 600.6419; MSA 27A.6419).

      Gregory L. Carr, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Janis Meija, Bernard Rosner, and Max E. Simon, Assistants Attorney General, for defendant.

      Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

The plaintiff appeals as of right from an order issued March 21, 1979, by the Wayne County Circuit Court affirming the decision of an administrative law judge that the Michigan Department of Social Services (DSS) acted properly in denying plaintiff’s request for excess shelter funds.

On October 15, 1974, Shirley Tompkins, a recipient of Aid to Families with Dependent Children (ADC), made a down payment of $1,500 for a house at 11657 Archdale in the city of Detroit, assuming an FHA mortgage of $16,000. The monthly mortgage payment was $163, while the maximum DSS shelter allowance was $110. Prior to purchasing the home, Margaret Dean, the plaintiff’s assistance payment worker, had assured her that her request for shelter funds in excess of $110 would be approved due to the size of her family and because of the amount of equity in the home.

Under regulations in effect in October of 1974, excess shelter funds could be granted only after prior supervisory approval, if they were necessary to preserve the client’s equity in the house. A shelter cost verification form filled out by the mortgage company had to be included with the request for excess shelter.

DSS sent a shelter verification form to Ms. Tompkin’s mortgage company around November 1, 1974. The form was not returned. In early January, 1975, the plaintiff inquired about her excess shelter request, and the DSS worker gave her a verification form to take to the mortgage company. The plaintiff returned the form to the worker, but it was not properly dated. DSS contacted the mortgage company several times, and finally received the form on February 15, 1975.

The verification form and the request for excess shelter funds were submitted to the DSS supervisor, Mrs. Gay, on February 22, 1975. The supervisor returned the request to the DSS worker in order to determine how the plaintiff had obtained the $1,550 down payment and whether plaintiff’s foster daughter had been erroneously included in the ADC grant.

It was not until April 4, 1975, that these matters were resolved and the worker resubmitted the request for excess shelter funds. However, a new regulation, effective April 1, 1975, stated that excess shelter funds could only be granted to an applicant if 12 monthly payments had already been paid. Under this standard, which was applied to the plaintiff, she was clearly ineligible for excess shelter funds until October 15, 1975. Thus, the DSS denied plaintiff’s request for excess shelter funds.

The plaintiff appealed this decision to the Wayne County Circuit Court pursuant to MCL 400.37; MSA 16.437. At that time, she alleged that her detrimental reliance on promises of excess shelter funds resulted in the loss of her house. She sought relief in the amount of her lost equity. In an opinion dated March 8, 1979, the trial court affirmed the DSS decision, and an order to that effect was issued on March 21, 1979. From that decision the plaintiff appeals to this Court. We would reverse.

The issue before us is whether the administrative law judge erred in upholding the DSS denial of plaintiff’s request for excess shelter funds based on the regulation which became effective on April 1, 1975.

According to Soto v Director of the Mich Dep’t of Social Services, 73 Mich App 263, 269; 251 NW2d 292 (1977), the standard of review under the Social Welfare Act (MCL 400.1 et seq., MSA 16.401 et seq.) is the same as the standard in § 106 of the Administrative Procedures Act, MCL 24.306; MSA 3.560(206), which provides:

"Sec. 106. (1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
"(a) In violation of the constitution or a statute.
"(b) In excess of the statutory authority or jurisdiction of the agency.
"(c) Made upon unlawful procedure resulting in material prejudice to a party.
"(d) Not supported by competent, material and substantial evidence on the whole record.
"(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.
"(f) Affected by other substantial and material error of law.”

Great deference is given to the findings of an administrative law judge. Viculin v Dep’t of Civil Service, 386 Mich 375, 406; 192 NW2d 449 (1971), Union Bank & Trust Co v First Michigan Bank & Trust Co, 44 Mich App 83, 90; 205 NW2d 54 (1972).

The "substantial evidence test” applies to review of social services cases. This has been defined as evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a mere scintilla of evidence, it may be substantially less than a preponderance of the evidence. Soto, supra, 271, citing Ginsburg v Richardson, 436 F2d 1146 (CA 3, 1971), cert den 402 US 976; 91 S Ct 1680; 29 L Ed 2d 142 (1971), reh den 403 US 912; 91 S Ct 2213; 29 L Ed 2d 690 (1971).

Since the administrative law judge, as the trier of fact, had the opportunity to hear testimony and view the witnesses, his decision will be upheld so long as it is supported by substantial evidence on the whole record. Timmons v Dep’t of Social Services, 89 Mich App 330, 340; 280 NW2d 515 (1979).

The administrative law judge in the instant appeal made the following findings of fact:

"1. That claimant purchased a home on October 14, 1974.
"2. That claimant came to the department and made a request for excess shelter on October 21, 1974.
"3. That the original submission to the supervisor for action on the excess shelter request was returned to straighten out the fact whether or not the stepdaughter was illegally placed on the ADC grant.
"4. When the matter was finally cleared up and the request for excess shelter was again submitted, the date being April 4, 1975, at which time new rules and regulations relating to excess shelter had gone into effect.”

With no further elaboration of explanation, he concluded that the new regulation which became effective on April 1, 1975, could be applied to bar the plaintiff from receiving an excess shelter grant.

We find that the administrative law judge erred in concluding that the new regulation applied, where the delay of 5-1/2 months was in no way attributable to the plaintiff. This result is unsupportable in view of 42 USC 602(a)(10), which requires that ADC payments must be furnished with reasonable promptness to all eligible individuals. Such applications are required to be acted on within 30 days except when the record clearly shows that the delay resulted from circumstances under the claimant’s control or from some administrative or other emergency that could not reasonably be controlled by the agency. Delay cannot be justified by the agency’s heavy case load. Like v Carter, 448 F2d 798 (CA 8, 1971), cert den 405 US 1045; 92 S Ct 1309; 31 L Ed 2d 588 (1972).

Some of the delay herein was caused by the failure of the mortgage company to return the verification form. However, between February 15, 1975, and April 4, 1975, the delay was caused by an investigation conducted by the DSS. The investigation was not the result of a change of circumstances, since the department was aware of these facts at the time of the initial application. It was this delay by the department which resulted in the ultimate denial of benefits due to the change in regulations which became effective 4 days prior to the ultimate decision. We find this result to be unreasonable. Plaintiff was entitled to have her application processed under the old regulation.

We therefore reverse the trial court’s decision affirming the administrative law judge and remand the case to the administrative law judge to determine the amount of benefits to which plaintiff would have been entitled under the prior, less restrictive regulation.

We note that, in her appeal brief to the circuit court, the plaintiff requested relief in the amount of her lost equity in the home, based on detrimental reliance. The applicable statute, MCL 400.37; MSA 16.437, provides for an appeal to the circuit court from an administrative hearing. This statute provides that the circuit court may order that a petitioner be reimbursed for welfare assistance that was improperly denied, but does not authorize any damage awards. Plaintiff has cited no authority which would indicate that the circuit court has jurisdiction to award consequential damage in an appeal from an administrative decision. Indeed, the decision in Greenfield Construction Co, Inc v Dep’t of State Highways, 402 Mich 172; 261 NW2d 718 (1978), would indicate the contrary.

We therefore conclude that the Court of Claims, which has jurisdiction over actions brought against state agencies not involving agency decisions, pursuant to MCL 600.6419; MSA 27A.6419, would be the proper forum for an original suit against the department for any consequential damages based on detrimental reliance. See Bays v Dep’t of State Police, 89 Mich App 356, 362-363; 280 NW2d 526 (1979).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.


text:
    PEOPLE v GUTHRIE
    Docket No. 44957.
    Submitted March 5, 1980, at Grand Rapids.
    Decided April 24, 1980.
    Leave to appeal granted, 409 Mich 924.
    Thomas A. Guthrie was charged with negligent homicide arising from the death of an unborn child in an automobile accident in which the mother’s abdomen struck her vehicle’s steering wheel. The Wexford Circuit Court, William R. Peterson, J., dismissed the charge on the grounds that the death of an unborn fetus was not equivalent to the death of "another” within the meaning of the negligent homicide statute. The people appeal. Held:

    It is not within the province of a court to change criminal statutes. That is the function of the Legislature. "Another” in the statute refers to "person”, and within the definition of "person” the Legislature has not included the unborn. The rule which limits prosecutions for negligent homicide to cases involving the death of someone "born alive” is archaic and should be abolished, but that is a matter for the Legislature not for a court.
    Affirmed.
    1. Criminal Law — Statutes — Courts.
    Criminal statutes, unlike the common law, may not be expanded by courts to meet new problems beyond the contemplation of the Legislature when the statutes were enacted.
    2. Homicide — Negligent Homicide — Unborn Child — Statutes.
    An unborn fetus, even when viable, is not a "person” for purposes of the negligent homicide statute; therefore, a defendant may not be prosecuted for negligent homicide in the accidental death of an unborn child (MCL 750.324; MSA 28.556).
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes § 295.
    [2] 40 Am Jur 2d, Homicide § 9.
    Homicide based on killing of unborn child. 40 ALR3d 444.
    Right to maintain action or to recover damages for death of unborn child. 40 ALR3d 411.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Burton Hines, Jr., Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Samardich, Benson, McCurdy & Wotila, P.C., (Janet Tooley, of Counsel), for defendant.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ.

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

   Per Curiam.

Did the trial court err in dismissing a charge of negligent homicide, MCL 750.324; MSA 28.556, against defendant on grounds that the death of an unborn but viable nine month fetus was not equivalent to the death of "another” within the meaning of that term as used in the statute? This question of first impression in Michigan arises on the following facts.

On August 8, 1978, at approximately 5 p.m., defendant drove his pickup truck across four lanes of traffic on US 131 in Cadillac striking an automobile being driven by Brenda Tucker in the northbound curb lane. The collision caused Mrs. Tucker’s abdomen to impact with her vehicle’s steering wheel. At the time of the accident, Brenda Tucker was nine months pregnant and was scheduled to enter the hospital the next day in preparation for a caesarean delivery on August 10, 1978.

Shortly after the accident an emergency caesarean section was performed and a stillborn infant was delivered. Autopsy revealed the infant weighed seven pounds, was "ready for birth” with all organs "normal” except there had been no expansion of the lungs. The pathologist stated that he found no evidence of trauma directly to the infant but that the placenta and the vessels of the umbilical cord had been torn. Both the pathologist and the obstetrician who performed the caesarean stated that the infant had bled to death.

Defendant was charged with negligent homicide contrary to MCL 750.324; MSA 28.556. After being bound over to circuit court on the offense charged, defendant moved to quash the information on grounds that the statute did not apply to unborn fetuses. A hearing was held on the motion February 8, 1979, before Circuit Judge William R. Peterson. On March 15, 1979, Judge, Peterson issued a written opinion granting defendant’s motion on grounds that a fetus was not a "person” within the meaning of the negligent homicide statute. Charges were dismissed against defendant by order entered April 30, 1979. The people appeal of right.

Michigan’s negligent homicide statute reads:

’’Any person who, by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000.00, or by both such fine and imprisonment.” (Emphasis supplied.)

The crucial word, the meaning of which we must determine, is the word "another”. Because "another” refers back to the word "person”, the question presented is whether an unborn but admittedly viable fetus is a "person” as that word is used in the statute. The statute was first enacted as 1921 PA 98, and was reenacted as 1931 PA 328. Since that time, it has been amended in minor respects not relevant to the question before us. From the date of the first enactment until the present time that portion of the statute which is emphasized above has remained unchanged.

The common-law rule, in effect when the statute was adopted in 1921, was that there could be no homicide without a living human being the victim. The killing of an unborn child was not a homicide at common law for the reason that the fetus was not considered a "person” or "a reasonable creature in being” before its birth. It was necessary that the child be "born alive” and exist independently of its mother’s body before it could be considered a "person”. Anno: Homicide Based on Killing of Unborn Child, 40 ALR3d 444, § 2, p 446, 40 Am Jur 2d, Homicide, § 9, p 300, Keeler v Superior Court of Amador County, 2 Cal 3d 619; 470 P2d 617; 87 Cal Rptr 481; 40 ALR3d 420 (1970). The history, development and continuing vitality of the "born alive” rule is well summarized in LaFave & Scott, Criminal Law, §67, pp 530-531 as follows:

"When Does Life Begin?
"It is a general requirement of the law of homicide that the victim be a living human being. Shooting a dead body is not homicide, although it may be another crime. The question of life arises most frequently in the cases involving destruction of the human fetus. At early common law the fetus was considered alive thirty to eighty days after conception. By the mid-seventeenth century, however, it was no crime to abort, with the consent of the mother, a fetus which had not 'quickened,’ an event that occurs four to five months after conception. Even then, the killing of a fetus was not homicide unless the fetus had been 'born alive.’ Being 'born alive’ required that the fetus be totally expelled from the mother and show a clear sign of independent vitality, such as respiration, although respiration was not strictly required.
"In the United States the 'born alive’ requirement has come to mean that the fetus be fully brought forth and establish an 'independent circulation’ before it can be considered a human being. Proof of live birth and death by criminal agency are required beyond a reasonable doubt to sustain a homicide conviction. 'Independent circulation’ can be established by evidence of the fetus having breathed, but such proof usually is not conclusive in the absence of the evidence of life, such as crying. * * *
"* * * The difficulty of proof of live birth has led some jurisdictions to define the fetus as a person for purposes of the homicide statute, or to define person so as to exclude the fetus.” (Emphasis supplied, footnotes omitted.)

The people frankly admit the existence of the "born alive” rule, but urge that the time is long overdue for its rejection. In support of this position the people advance two arguments. First, for purposes of an action in tort, recent Michigan case law has held that parents of an unborn but viable fetus may maintain a wrongful death action on behalf of the fetus. O’Neill v Morse, 385 Mich 130; 188 NW2d 785 (1971). More recently, in sustaining the constitutionality of the assaultive abortion statute or the manslaughter by abortion statute, a similar position was adopted.

"We hold that the word child as used in MCLA 750.322; MSA 28.544, and MCLA 750.323; MSA 28.555, means a viable child in the womb of its mother; that is, an unborn child whose heart is beating, who is experiencing electronically measurable brain waves, who is discernably moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of the usual medical care and facilities available in the community.” (Emphasis supplied.) Larkin v Wayne Prosecutor, 389 Mich 533, 541-542; 208 NW2d 176 (1973).

Second, the "born alive” rule is an archaic legal fiction which no longer serves a legitimate objective. Plaintiff’s excellent brief expresses this point of view as follows:

"The emergence of viability as a medically distinct developmental stage has mooted the Hobson’s choice between quickening and birth. In terms of an independent existence, viability is the most important event after conception. Quickening merely indicates a perception of movement and has virtually no significance from a developmental perspective. Birth terminates gestation, but is simply a continuation of viability in a new environment. Once the fetus reaches viability, it is virtually indistinguishable, physiologically, from the newborn infant. * * *
"Moreover, birth itself is no longer a violent perilous adventure. Current statistics indicate that the fetal survival rate after twenty weeks of gestation is ninety-nine percent (99%). * * * This compares with an infant survival rate of 98.5%. Thus, after five months of pregnancy, survival is virtually certain, or at least as certain as survival through the first postnatal year.
"In this context, the 'live birth’ rule is an anachronism. Its original expediency and practicality has evaporated in the light of modern science and experience. Only its arbitrary, inflexible character remains.”

This panel agrees that the "born alive” rule is outmoded, archaic and no longer serves a useful purpose. Modern medical practice has advanced to the point that, unlike the situation when the rule was first developed, the vast majority of viable fetuses will, in the absence of some unexpected event, be born alive and healthy. Further, medical technology can now accurately determine the stages of fetal development and viability. This being so, birth itself in terms of emergence from the mother’s body should no longer be held determinative. We further acknowledge that for purposes of actions in tort for wrongful death, recovery may be had even if a viable fetus was yet unborn.

But our concession in these respects does not lead us to conclude that it is within the province of this Court to reverse the trial court. It is one thing to mold, change and even reverse established principles of common law in civil matters. It is quite another thing to do so in regard to criminal statutes. As long ago as 1886 the Supreme Court stated that "[wjhatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation”. In the Matter of Eugene Lamphere, 61 Mich 105, 108; 27 NW 882 (1886). Almost 100 years later this Court reaffirmed the same rule of construction saying:

"Criminal statutes, in contrast with the common law, may not be expanded to meet new problems beyond the contemplation of the Legislature when the statute was enacted.” People v Otis Adams, 34 Mich App 546, 573; 192 NW2d 19 (1971), aff'd in part 389 Mich 222; 205 NW2d 415 (1973).

See also People v Gilbert, 88 Mich App 764, 768; 279 NW2d 546 (1979).

When the Legislature enacted the negligent homicide statute in 1921 and reenacted it in 1931, the "born alive” rule was a well understood and accepted rule of law. At that time and in subsequent years, the Legislature had the opportunity to include unborn fetuses in the statute, but did not do so. The Legislature has, however, enacted the assaultive abortion and manslaughter abortion statutes cited earlier in this opinion. Both statutes specifically refer to fetal deaths. The fact that the Legislature would refer to a fetus in two statutes but not in the negligent homicide statute is strongly persuasive that the Legislature did not intend that a viable fetus is a "person” within the meaning of that term in the statute._

The reluctance of the judiciary to reject the "born alive” rule in situations involving charges brought against a defendant under a criminal statute is found in decisions from other jurisdictions. In Keeler v Superior Court of Amador County, supra, the Supreme Court of California rejected the people’s argument that scientific advances in obstetrics and pediatrics justified the court in construing the term "human being” in a statute defining murder to include a viable but yet unborn fetus.

"Applying these rules to the case at bar, we would undoubtedly act in excess of the judicial power if we were to adopt the People’s proposed construction of section 187. * * * For a court to simply declare, by judicial fiat, that the time has now come to prosecute under section 187 one who kills an unborn but viable fetus would indeed be to rewrite the statute under the guise of construing it. Nor does a need to fill an asserted 'gap’ in the law between abortion and homicide— as will appear, no such gap in fact exists — -justify judicial legislation of this nature: to make it 'a judicial function "to explore such new fields of crime as they may appear from time to time” is wholly foreign to the American concept of criminal justice’ and 'raises very serious questions concerning the principle of separation of powers.’ ” 2 Cal 3d at 632-633.

In State v Dickinson, 23 Ohio App 2d 259; 263 NE2d 253 (1970), the court was asked to construe a homicide by vehicle statute whose provisions are strikingly similar to the Michigan statute. The question involved was whether a viable but unborn fetus of a seven-month pregnant woman was a "person”. The trial court had answered that question in the affirmative based upon Ohio decisions that for purposes of civil injury cases the word "persons” included unborn viable fetuses. The Court of Appeals reversed, saying:

"We feel bound to distinguish those civil cases from criminal prosecutions for homicide.
"In summary, since we find the word 'person’ to have had at the time of its use by the Legislature a clear cut common law meaning, and since the Legislature did not otherwise define the word, we feel the more appropriate rule is set forth in the opinion of the case of In re Torok, 161 Ohio St 585, at 589 [120 NE2d 307, at 310 (1954)], by Chief Justice Weygandt:
" 'As this court has repeated in numerous cases involving statutory construction, the question is not what did the General Assembly intend to enact but what is the meaning of that which it did enact. Slingluff v Weaver, 66 Ohio St 621, 64 NE 574 [1902].’
"Until the Legislature of this state amends the homicide statutes so as to expressly include as the object of their protection a viable unborn fetus, we feel compelled to hold that an unborn fetus, viable or otherwise, has not been made the subject of homicide under RC 4511.181.” 23 Ohio App 2d at 260-261.

Directly on point, and for practical purposes indistinguishable from the case before us, is State v Larsen, 578 P2d 1280 (Utah, 1978). In that case, defendant, while driving in excess of 100 miles an hour and under the influence of alcohol, collided with another car in which a woman 26 weeks pregnant was riding. The collision caused the death of the unborn fetus. Defendant was charged under a Utah negligent homicide statute similar to the Michigan statute. After stating that the question on appeal was "whether the Legislature intended to include an unborn fetus within the definition of 'another’ ” (this being the same issue in the case before us), the court concluded:

"Against this background, the State urges this Court to find that the time has come to recognize that a fetus is a human being under the homicide statutes, though the Legislature has not specifically stated that it is to be so considered. In the absence of statute, the terms 'person’, 'human being’, 'another’ (in the context of 'person’) do not include an unborn fetus for purposes of the crime of homicide. After the California Supreme Court in Keeler, supra, found that the term 'human being’ did not include a viable but unborn fetus, the California Legislature passed a feticide statute. If the Utah Legislature wishes to pass this type of statute, it should do so in clear and specific language. ” 578 P2d at 1282 (Emphasis supplied.)

The people contend that Dickinson and Larson, supra, are distinguishable because at the time of the decisions the Supreme Courts of those states had not recognized an unborn fetus as a person in civil actions for wrongful death. We disagree. As already noted, in Dickinson, the Ohio Court of Appeals had so held and, by 1978 when Larson was decided, a majority, though slight, of the states recognized tort actions in civil suits for injuries to a viable fetus. Prosser, Torts, § 55, p 338 (4th ed, 1971). Further, in a decision announced 12 days prior to oral argument in the instant case, the Illinois Supreme Court refused to rule that an unborn fetus was an "individual” under a statute providing that a "person who kills an individual without lawful justification commits murder”. Ill Rev Stat 1977, ch 38, ¶ 9-1(a), People v Greer, 79 Ill 2d 103; 402 NE2d 203 (1980). In so doing, the court rejected the claim of the prosecution that, because Illinois allowed wrongful death actions for the death of a viable fetus, it should recognize a viable fetus as an "individual” under the criminal statute.

"Equally significant, these opposing tendencies to protect the fetus in some instances and not in others have long coexisted. The common law that protected certain property rights of the fetus also declined to apply the penalties for homicide to one who destroyed the fetus. As earlier noted, American courts which have extended the benefits of tort law to fetuses have also, in the absence of specifically inclusive statutory language, uniformly refused to change the born-alive rule in criminal cases, four of them within the last 10 years. We do not imply that this divergence between tort law and criminal law is necessarily inconsistent. Differing objectives and considerations in tort and criminal law foster the development of different principles governing the same factual situation.” 79 Ill 2d at 114-115; 402 NE2d at 208-209.

For the foregoing reasons, the trial court’s order. dismissing the charge of negligent homicide against defendant must be affirmed. Although we find that the "born alive” rule is archaic and should be abolished in prosecutions brought under the negligent homicide statute, the abolition of the rule is a matter for action by the Legislature. For this Court to interpret the statute to include unborn viable fetuses as persons would usurp the Legislature’s traditional power of defining what acts shall be criminal and would be contrary to the decisions from other jurisdictions cited herein. Respectfully, we urge the Legislature to make the necessary amendments to the statute.

Affirmed.

       "No appellate court of the United States or England has ever, as a matter of common law definition, treated a fetus as a person for the purposes of criminal law. There is no precedent holding that a fetus could be the subject of criminal assault or homicide. All precedent is to the contrary; see Rex v Brain, 6 C & P 349, 172 Eng Rep 1272 (1834), Krichman v United States, 256 US 363, 41 S Ct 514, 65 L Ed 992 (1921) and Keeler v Superior Court, 2 Col 3d 619, 470 P2d 617 (1970).
      "To expand statutory criminal definition by altering the common law definition of the terms contained therein is beyond the authority of the courts. It would also be inconsistent with the existing statutory scheme of the penal code. The Legislature has, for instance, defined the 'wilful killing of an unborn quick child’ by injury to the mother as manslaughter where the act would have been defined as murder of the mother had she died. If a fetus is now to be redefined as a 'person’ for the purposes of the criminal common law, such an act would not be manslaughter but murder at the common law. So too, a mother causing an abortion of her fetus is presently not guilty of homicide and, indeed, is guilty of no offense at all. In re Vickers, 371 Mich 114 [123 NW2d 253] (1963); but she would be guilty of homicide were the definition of 'person’ altered to include a fetus.”

       "The willful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.” MCL 750.322; MSA 28.554.

       "Any person who shall administer to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in case the death of such child or of such mother be thereby produced, be guilty of manslaughter.” MCL 750.323; MSA 28.555.

       See footnotes 2 and 3, supra.

       The assaultive abortion statute was enacted at the same time, and in the same public act, as the reenactment of the negligent homicide statute. 1931 PA 328, §§ 322, 324. This is particularly significant since the assaultive abortion statute designates that the willful killing of an unborn quick child constitutes the crime of manslaughter only if the injury to the mother by which the fetus dies would constitute murder if the mother had died. Since the negligent homicide statute applies under the facts in this case, and any resulting death to the mother would only constitute negligent homicide (a 2 year misdemeanor) and not murder, it follows that the Legislature must have specifically considered and rejected the application of the feticide statute under these circumstances.
      For an appropriate application of this precise statutory provision, see Tiner v State, 239 Ark 819, 826; 394 SW2d 608, 612 (1965).

        "No person shall unlawfully and unintentionally cause the death of another while violating Section 4511.19, 451Í.20, 4511.201 or 4511.251 of the Revised Code. Any person violating this section is guilty of homicide by vehicle in the first degree.” Ohio Rev Code, § 4511.181 (Emphasis supplied.)

       "Criminal homicide constitutes automobile homicide if the actor, while under the influence of intoxicating liquor, a controlled substance, or any drug, to a degree which renders the actor incapable of safely driving a vehicle, causes the death of another by operating a motor vehicle in a negligent manner.” Utah Code, § 76-5-207. (Emphasis supplied.)

       Though the criminal case against defendant would be dismissed, Brenda Tucker may still pursue her claim for damages under the wrongful death statute.


text:
    BEKKERING v SYSWERDA
    Docket No. 45036.
    Submitted March 4, 1980, at Grand Rapids.
    Decided April 24, 1980.
    Plaintiff, Raymond Bekkering, brought a negligence action against defendants, Robert and Patricia Syswerda, in the Kent Circuit Court. At trial, plaintiff requested and objected to the court’s failure to give instructions on comparative negligence. The jury returned a verdict of no cause of action on February 2, 1979. The court, George V. Boucher, J., entered judgment on the verdict on March 6, 1979. The Supreme Court’s decision recognizing comparative negligence was released on February 8, 1979 (Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 [1979]). Plaintiff appeals. Held:

    Plaintiff comes within the ambit of those to whom Placek was intended to apply.
    Reversed and remanded.
    Negligence — Comparative Negligence — Appeal — New Trial.
    A plaintiff in a negligence action who requested but was denied an instruction on comparative negligence in a trial in which the jury returned a verdict of no cause of action prior to the Supreme Court’s decision recognizing comparative negligence is entitled to a new trial where the judgment was not entered until after the Supreme Court’s decision.
    Reference for Points in Headnote
    [1] 58 Am Jur 2d, New Trail § 127.

      Annis, Annis & Telman, for plaintiff.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Semon, Jr., JJ.

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

   Per Curiam.

At the trial below, plaintiff requested and objected to the court’s failure to give an instruction on comparative negligence. The jury returned a verdict of no cause of action on February 2, 1979. Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), was decided on February 8, 1979. The judgment below was not entered until March 6, 1979. Thereafter, following denial of a motion for a new trial, this appeal was brought raising as the sole issue whether plaintiff should be granted a new trial on the issue of comparative negligence by virtue of the Supreme Court ruling in Placek, supra.

In Placek, supra, our Supreme Court gave limited retroactive effect to its decision in the following language:

"Therefore, we hold the rule announced today applicable to the instant case and all appropriate cases in which trial commences after the date of this opinion including those in which a retrial is to occur because of remand on any other issue. Further, we find comparative negligence applicable to any case presently pending on appeal in which application of the doctrine was requested at the trial court and the issue preserved for appeal. Finally, comparative negligence shall be the applicable rule in any case commenced but not submitted to the trier of fact prior to the date of this decision, but in no case shall it apply unless there is an appropriate request by counsel prior to submission to the trier of fact.” Id., 667-668.

The trial court determined that plaintiff did not come within the foregoing limited retroactive application since, although application of the doctrine was requested at the trial court and the issue preserved for appeal, this case was not "pending on appeal” at the time of Placek’s, supra, pronouncement.

It should be noted that this was not a case that was tried long before Placek, supra, where the appeal period had run out. Rather, due to the fact that a judgment was not issued until after Placek, supra, plaintiff does not come within the literal language of that case. Certainly, however, in preserving the issue for appeal, plaintiff at least comes within the intent of Placek to allow retroactive appeals where, "litigants had exercised the same diligence exercised by the instant plaintiffs in raising the issue”. Id., 667.

We are persuaded as was the Alaska Supreme Court in State v Guinn, 555 P2d 530, 541-542 (Alas, 1976), that this plaintiff comes within the ambit of those to whom our Supreme Court intended Placek to apply. Under these circumstances, to deprive plaintiff of a new trial by virtue of an overly technical interpretation of the applicable language would work an injustice. We decline to do so. The decision of the trial court is reversed and this cause remanded for a new trial.

       We further note that defendants-appellees have failed to file a brief in this appeal contrary to the language of GCR 1963, 815.2(1). Such omission in the appeals of criminal cases has been criticized and sometimes held to constitute an admission of the complained-of error. People v Scott, 72 Mich App 16, 17 fn 1; 248 NW2d 693 (1976).


text:
    DOWDY v MOTORLAND INSURANCE COMPANY
    Docket No. 45195.
    Submitted March 5, 1980, at Detroit.
    Decided April 24, 1980.
    Kenneth L. Dowdy (plaintiff) and Margaret Dowdy brought an action in Wayne Circuit Court against Motorland Insurance Company (Motorland) and Detroit Steel Products Company for damages for injuries suffered while in the course of his employment with Artim Trucking Company. Motorland was the no-fault insurance carrier for plaintiffs private automobile. The parties’ stipulated facts reveal that plaintiff and' two other truck drivers from Artim Trucking drove flat bed trucks from Indianapolis to Louisville, Kentucky, where they each picked up approximately 10 or 11 bundles of bar stock, weighing between 5,700 and 6,000 pounds. They left Louisville, driving in caravan style, and drove to the premises of the Detroit Steel Products Company located in Morristown, Indiana. Upon arrival it was the responsibility of the drivers to untie the chains and other devices used to secure the bundles to the trailers. Thereafter, the employees of Detroit Steel Products unloaded the steel bundles and stacked them in pyramid fashion, about two feet high, on the warehouse floor in close proximity to the unloading area. Pieces of wood were used as spacers between the bundles stacked on the floor. Plaintiff was the last to unload. He backed his truck into the unloading area, walked to the rear wheels on the driver’s side of the tractor and proceeded to unfasten the tie chains used to secure the steel bundles. At this time, a bundle of steel which had previously been unloaded from another truck fell from the stacks, pinning the plaintiff’s left leg against the left rear wheel of the tractor. The accident caused a severe fracture of plaintiff’s left ankle. Both plaintiff and Motorland moved for summary judgment. The court, Roman S. Gribbs, J., granted summary judgment for Motorland, holding that the injury did not arise out of the ownership, maintenance or use of a parked vehicle. The Dowdys appeal. Held:

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d (Rev), Automobile Insurance §§ 351, 354, 355.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.
    What constitutes a "motor vehicle” covered under no fault insurance. 60 ALR3d 651.

      1. A section of the no-fault automobile insurance act which provides in part that no-fault insurers are liable for paying certain claims arising from accidents involving parked motor vehicles where "the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or being lowered from the parked vehicle in the loading or unloading process. Plaintiffs injuries did not result from physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process.
    2. There must be a causal connection between the injury suffered and the ownership, maintenance or use of the automobile to sustain a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile; the causal connection must be more than incidental, fortuitous or "but for”, and the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle. There was no causal connection between plaintiffs injuries and the ownership, maintenance or use of the parked vehicle.
    Affirmed.
    1. Insurance — No-Fault — Compensable Injuries — Parked Vehicles — Equipment on Vehicle — Statutes.
    A section of the no-fault automobile insurance act which provides in part that no-fault insurers are liable for paying certain claims arising from accidents involving parked motor vehicles where "the injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process” makes compensable injuries which are a direct result of physical contact with property being lifted onto or being lowered from the parked vehicle in the loading or unloading process (MCL 500.3106[b]; MSA 24.13106[b]).
    2. Automobiles — Insurance — "Ownership, Maintenance, Use”.
    There must be a causal connection between the injury suffered and the ownership, maintenance or use of the automobile to sustain a claim under the terms of an automobile insurance policy which provides coverage for injuries arising out of the ownership, maintenance or use of an automobile; the causal connection must be more than incidental, fortuitous or "but for”, and the injury must be foreseeably identifiable with the normal use, maintenance or ownership of the vehicle.

      Kelman, Loria, Downing, Schneider & Simpson (by Michael L. Pitt), for plaintiffs.

      Dickinson, Pike, Mourad, Brandt & Hanlon (by James H. Schoolmaster), and Gromek, Bendure & Thomas, for defendants.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and J. H. Gillis, JJ.
   Per Curiam.

This appeal arises from an action by plaintiff Kenneth L. Dowdy to recover no-fault benefits for injuries sustained on January 11, 1978, while he was in the course of employment with Artim Trucking Company. The defendant, Motor-land Insurance Company (hereinafter Motorland) is the no-fault insurance carrier for plaintiff’s private automobile.

The parties’ stipulated facts reveal that the plaintiff and two other truck drivers from Artim Trucking left Indianapolis on the morning of January 11, 1978. All three were driving flat bed trucks from Indianapolis to Louisville, where they each picked up approximately 10 or 11 bundles of bar stock, weighing between 5,700 and 6,000 pounds. They left Louisville, Kentucky, driving in caravan style, and drove to the premises of the Detroit Steel Products Company, located in Morristown, Indiana.

Upon arrival, Patrick Bolte, one of the other drivers who accompanied the plaintiff, was the first to unload. It was the responsibility of the drivers to untie the chains and other devices used to secure the bundles to 'the flat bed trailers. Thereafter, the employees of Detroit Steel Products unloaded the steel bundles and stacked them in pyramid fashion, about two feet high, on the warehouse floor in close proximity to the unloading area. Pieces of wood were used as spacers between the bundles stacked on the floor.

The plaintiff was the last to unload. He backed his truck into the unloading area, walked to the rear wheels of the tractor on the driver’s side and proceeded to unfasten the tie chains used to secure the steel bundles. At this time, a bundle of steel which had previously been unloaded from another truck fell from the stacks, pinning the plaintiffs left leg against the left rear wheel of the tractor. The accident caused a severe fracture of plaintiff’s left ankle.

On November 17, 1978, plaintiff and defendant argued their motions for summary judgment before the Wayne County Circuit Court. The trial court, by an order issued May 2, 1979, granted summary judgment to Motorland based on a finding that the plaintiff did not sustain a bodily injury arising out of the ownership, maintenance or use of a parked vehicle within the meaning of the Michigan no-fault statute. From this order, the plaintiff appeals as of right.

On appeal, we are asked to decide whether the trial court erred in granting summary judgment in favor of the defendant because the plaintiff’s injury did arise from the ownership, operation, maintenance or use of a parked motor vehicle.

MCL 500.3105(1); MSA 24.13105(1) provides that:

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

MCL 500.3106; MSA 24.13106 deals specifically with injuries which involve a parked vehicle:

"Accidental bodily injury does not arise out of the ownership, operation, maintenance or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(a) The vehicle was parked in such a way as to cause unreasonable risk of the bodily injury which occurred.
"(b) The injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used or property being lifted onto or lowered from the vehicle in the loading or unloading process.
"(c) The injury was sustained by a person while occupying, entering into or alighting from the vehicle.” (Emphasis supplied.)

In order to recover no-fault benefits, the plaintiff must first fit himself within one of the three categories of § 3106. Clearly subsection (a) is not applicable to the facts of this case. The plaintiff claims that subsection (b) applies to his situation. This subsection was interpreted in Dembinski v Aetna Casualty & Surety Co, 76 Mich App 181; 256 NW2d 69 (1977), where the plaintiff was carrying a ceramic mold which he was about to load onto his truck, slipped in a puddle of water, fell and injured his back. The Court found that the loading process consists only of the lifting of property into the vehicle. Since Dembinski was merely preparing to load the truck, he was excluded from coverage under § 3106(b). The Court said further that summary judgment was appropriate, since there was no dispute as to what occurred but only as to the question of law: whether what occurred came within the insurance coverage of loading.

Another case which interprets § 3106(b) is Arnold v Auto-Owners Ins Co, 84 Mich App 75; 269 NW2d 311 (1978). In Arnold, the plaintiff ruptured a disc in his back while he was lifting a ramp onto the upper deck of his employer’s truck. The defendant insurance company contended that the injury was not compensable under § 3106(b) because it was not caused by physical contact with equipment permanently mounted on the vehicle. The Court, based on Dembinski, supra, concluded that § 3106(b) also makes compensable injuries which are a direct result of physical contact with property being lifted onto or lowered from the parked vehicle in the loading or unloading process.

Under the undisputed facts of the instant case, the plaintiff was not injured due to contact with any equipment permanently affixed to the vehicle, nor was the injury due to contact with property which was being lifted onto or lowered from the vehicle in the loading process. We therefore find that § 3106(b) does not apply to the plaintiff and does not entitle him to a recovery under no-fault.

We next examine § 3106(c) to determine its propriety for the factual situation under consideration, i.e., whether the plaintiff was an "occupant” of the vehicle, or "entering or alighting” from the vehicle at the time of his injury. In Nickerson v Citizens Mutual Ins Co, 393 Mich 324; 224 NW2d 896 (1975), the plaintiff was a passenger of a car which stalled in the middle of the road. The occupants pushed the car to the side of the road and then flagged down a passing motorist for assistance. The plaintiff walked to the front of the stalled car while the assisting car was turning around to come back and render aid. At this time, a third vehicle struck the stalled car from behind, pushing it into the plaintiff Nickerson, who was severely injured. The Michigan Supreme Court concluded that strict physical contact was not imperative to a recovery. Nickerson had immediately prior to the injury been "occupying” the insured vehicle, and his subsequent injury arose out of the use or repair of the same vehicle, so he was an "occupant” of the insured vehicle and therefore within the scope of coverage.

The term "occupying” has thus been broadly interpreted by the Michigan courts to include persons who are not actually inside the vehicle at the time of injury. In Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), the decedent was deemed an occupant of his employer’s dumptruck where he was fatally injured while "standing on or next to” the dump box while examining or attempting to repair a malfunction in the dumping mechanism. In Hathcox v Liberty Mutual Ins Co, 90 Mich App 511; 282 NW2d 374 (1979), the plaintiff was loading new automobiles onto his employer’s truck-trailer. After driving one of these automobiles to the top deck and leaving the car, the plaintiff slipped on the snow-covered deck and fell, suffering neck and back injuries. The Court reasoned thusly, 90 Mich App 511, 517:

"Here, plaintiff was engaged in the operation of loading his employer’s truck-trailer with automobiles; in doing so, he was obliged to repeatedly return to the truck’s cab in order to readjust the accelerator in conjunction with the operation of the hydraulic pump system; further, he fell down immediately after having driven an automobile onto the deck of the trailer. As in Nickerson, plaintiff was actually inside of the insured vehicle’s cab at various times during the automobile loading process and his subsequent injury arose out of his use of the truck and its trailer. We find, therefore, that plaintiff was an "occupant” of that vehicle within the meaning of MCL 500.3114(3); MSA 24.13114(3).”

These cases adhere to the maxim laid down in Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975), as follows:

"In summary, we conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle. We do not find such a causal connection in this case. The injury did not occur in the vehicle or while it was in motion. Assaults and fisticuff's are not normal foreseeable occurrences in the use of a vehicle. The fact that the automobile came upon the pedestrian was purely fortuitous and incidental. The use of the vehicle had no connection with the unexpected subsequent altercation between the passenger Giddises and the pedestrian. Viewing the incident in its entirety, we find that the injury did not arise out of the ownership, use and operation of the automobile as those terms are used within the policy.” (Emphasis added.)

Thus, in both Nickerson and Ottenwess, supra, the injuries resulted from efforts to repair or "maintain” the vehicle. In Hathcox, supra, the injury occurred as a result of loading the vehicle. The "causal connection” requirement has been repeated in various cases, e.g., O’Key v State Farm Mutual Automobile Ins Co, 89 Mich App 526; 280 NW2d 583 (1979), concluding that a gunshot during a holdup of the plaintiff who was sitting in a parked vehicle was not compensable under no-fault because the automobile was not the instrumentality of the injury and plaintiff’s occupancy of the car was a fortuity in no way connected to the assault. Again, in Hamka v Automobile Club of Michigan, 89 Mich App 644; 280 NW2d 512 (1979), the Court concluded that there was no causal connection where plaintiff was punched in the nose while sitting in his parked car, as the assault did not arise out of the ownership, operation, maintenance, or use of the vehicle.

It is apparent that those cases which involved "occupants” of parked vehicles, e.g., Nickerson, Ottenwess and Hathcox, supra, used a two-tiered analytical approach in reaching their conclusions: first, § 3106 was found applicable to the facts of the case; then, a causal connection was established between the ownership, operation, maintenance or use of the vehicle and the subsequent injury. This rule was later specifically formulated in Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307; 282 NW2d 301 (1979). In that case, the plaintiff was engaged in "shining” deer when he stopped the car and got out to shoot at an animal. He then sought to reenter the car, and handed his shotgun to one of the passengers. Either in the process of handing in the gun or immediately thereafter, the shotgun accidentally discharged, fatally wounding Shinabarger. The Court said, 90 Mich App 307, 314-315:

"Section 3106, which establishes criteria for accidents involving parked vehicles, does not abrogate the need for a causal connection between the automobile and the injury. As the wording of the section makes clear, it establishes only minimum criteria for accidents involving parked vehicles. Under § 3106, no injury involving a parked vehicle may be compensated for unless one of the criteria therein is met; however, fulfillment of the requirements of § 3106 does not automatically result in liability. Even after the threshold of § 3106 is crossed, it must still be established that the injury arose out of the ownership, operation, maintenance or use of the motor vehicle.
"Although the parties in the case at bar agreed that the motor vehicle was the site of the injury suffered by Shinabarger, there was no stipulation that the use of the vehicle was a cause of the accident. Indeed, there is nothing in the record before us to indicate what caused the shotgun to discharge. Because the record does not establish a causal connection between use of the vehicle and the injury, the trial court erred in finding liability as a matter of law.
"Plaintiffs argue on appeal that the injury to Gary Shinabarger occurred during the loading process, that loading is use of a motor vehicle as a motor vehicle, and that plaintiffs are therefore entitled to benefits. We agree that loading is use of a motor vehicle, especially so where there exists a separate loading clause in the policy description of coverage. * * * The requirement of a causal connection between the loading process and the injury, however, remains.”

The plaintiff relies primarily on the decision in McPherson v Auto-Owners Ins Co, 90 Mich App 215; 282 NW2d 289 (1979). In McPherson, the plaintiff had parked her automobile and while in the process of walking around it in order to remove her three-year-old grandson from the back seat, she slipped and fell on an obstruction in the highway, causing an injury. The Court, basing its decision on Nickerson, supra, stated that the automobile need not be the cause of the injury, it is sufficient if it "provides the occasion” for the injury, and concluded that the plaintiff was entitled to recover no-fault benefits. We think this case is wrongly decided, for the "occasion of the injury” test would allow recovery where the vehicle fortuitously provides the setting for the injury. We agree with Judge Gillis in his dissent to McPherson, where he says, 90 Mich App 215, 222:

"Even where a person is occupying, entering into or alighting from a vehicle, it must still be shown that there is a causal relationship between the injury and the ownership, use, or maintenance of the vehicle. In the instant case while it may be true that but for her use of the car plaintiff would not have slipped, as previously noted this is not the proper test to apply. The trial court held there was no causal connection between her use of the automobile and the fact that she fell in the snow and I agree with that determination.”

In the instant case, there was no causal connection between the plaintiff’s injury and the ownership, operation, maintenance or use of his vehicle. It is undisputed that the injury occurred when a wooden support collapsed, allowing a bundle of steel to roll away and injure the plaintiff while he was standing near his vehicle in preparation to its unloading. We find, as a matter of law, that plaintiff’s injury did not arise out of the ownership, operation, maintenance or use of a motor vehicle and the trial court did not err in granting summary judgment to the defendant.

Affirmed.


text:
    PEOPLE v BARKER
    Docket No. 45335.
    Submitted March 10, 1980, at Lansing.
    Decided April 24, 1980.
    Leave to appeal applied for.
    Defendant, Robert E. Barker, Jr., was convicted of breaking and entering an occupied dwelling with intent to commit larceny in the Saginaw Circuit Court, Fred J. Borchard, J. Defendant appeals. Held:

    1. Failure to request special instructions and failure to object to the lack of them precludes appellate review of that issue.
    2. The objective test for entrapment focuses on the conduct of the police. For entrapment to exist, there must be a causal connection between the provocative acts of the police and the criminal acts of the defendant. The conducting of a "sting operation” by police where defendant sold stolen property is not entrapment in the prosecution for a breaking and entering occurring before the sale.
    3. A trial judge commits error when he allows evidence of prior convictions to be used to impeach a defendant without explicitly indicating and identifying his exercise of discretion and without indicating his consideration of the appropriate factors in making his decision. However, that error does not mandate reversal where it was not so offensive as to undermine the entire judicial system and where it can be held to be harmless beyond a reasonable doubt. Where a defendant’s prior conviction record is brought out on direct examination of the defendant and the prosecutor does not question the defendant about the previous convictions, any error in the admission of evidence of the convictions is harmless.
    Affirmed.
    1. Appeal — Instructions to Jury — Failure to Give Instructions.
    Failure to request special instructions and failure to object to the lack of them precludes appellate review of that issue.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 623, 891.
    [2] 21 Am Jur 2d, Criminal Law § 143.
    [3] 5 Am Jur 2d, Appeal and Error §§ -797, 798.
    29 Am Jur 2d, Evidence § 320 et seq.

      2. Criminal Law — Entrapment.
    The objective test for entrapment focuses on the conduct of the police; for entrapment to exist, there must be a causal connection between the provocative acts of the police and the criminal acts of the defendant; the conducting of a "sting operation” by police where defendant sold stolen property is not entrapment in the prosecution for a breaking and entering occurring before the sale.
    3. Criminal Law — Evidence — Impeachment — Prior Convictions — Appeal — Harmless Error.
    A trial judge commits error when he allows evidence of prior convictions to be used to impeach a defendant without explicitly indicating and identifying his exercise of discretion and without indicating his consideration of the appropriate factors in making his decision; however, that error does not mandate reversal where it was not so offensive as to undermine the entire judicial system and where it can be held to be harmless beyond a reasonable doubt.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, contrary to MCL 750.110; MSA 28.305. On March 23, 1979, he was sentenced to 5 to 15 years imprisonment with 289 days jail-time credit. Defendant now appeals as of right.

Defendant contends that the trial court reversibly erred in failing to give preliminary instructions to the jury. Since the defendant neither requested these instructions nor objected to the lack of them, this issue has not been preserved for appeal. GCR 1963, 516.2, People v Clay, 91 Mich App 716, 723; 283 NW2d 870 (1979).

Defendant also asserts that the Saginaw Police Department’s "Operation Sting” constituted entrapment. This "fencing” operation was devised to lure sellers of stolen property. Defendant was videotaped selling stolen property to undercover officers and was subsequently arrested.

Michigan has adopted the objective test of entrapment which focuses on the alleged reprehensibility of police behavior. See People v Turner, 390 Mich 7; 210 NW2d 336 (1973), People v Ramon, 86 Mich App 113; 272 NW2d 124 (1978). For entrapment to exist, there must be a causal connection between the provocative acts of the police and the criminal acts of the defendant. People v Moore, 73 Mich App 514, 517; 252 NW2d 507 (1977).

Even if we were to consider "Operation Sting” objectionable, we would not recognize the instant situation as entrapment. Defendant’s selling of stolen property occurred after the breaking and entering for which he was charged. Thus, it cannot rationally be argued that the subsequent police conduct caused defendant’s prior offense. Defendant was not charged with any offenses arising out of the police sale, therefore, there was no possible entrapment.

Finally, defendant argues that the trial court reversibly erred in allowing evidence of two prior convictions, one for armed robbery and one for breaking and entering, to be used for impeachment purposes.

As stated in People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), "* * * the trial court must positively indicate and identify its exercise of discretion”, in allowing or barring testimony regarding prior convictions. The instant judge never explicitly recognized his discretion on the record. Nor is it clear that he considered the factors enunciated in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), that the contested prior convictions relate to credibility and that there are no alternative, less burdensome means of impeaching the defendant while protecting his right to choose whether or not to testify. Further, with regard to the former breaking and entering conviction, the judge did not consider the negative quality of similarity between it and the charged offense. See People v Baldwin, 405 Mich 550, 553; 275 NW2d 253 (1979).

Having found error, we must determine whether it mandates reversal. First, we must inquire whether the error was so offensive that it undermined the entire judicial system. People v Wilkins, 82 Mich App 260, 272; 266 NW2d 781 (1978). We do not believe that the error was of that magnitude. Our next question must then be whether the error was harmless beyond a reasonable doubt. Wilkins, supra. We believe that it was.

When a defendant’s criminal record is improperly allowed into evidence and the defendant then takes the stand to explain it, the original error may only be harmless. People v Townsend, 60 Mich App 204, 205-206; 230 NW2d 378 (1975), People v Bradford, 10 Mich App 696, 705-706; 160 NW2d 373 (1968). This scenario is unlike that of People v Denny, 86 Mich App 40; 272 NW2d 332 (1978), where the admission of evidence of a similar conviction discourages the defendant from taking the stand.

In the instant case, the defense attorney evidently chose to soften the impact of the prior convictions issue by questioning defendant about the convictions on direct examination. See People v Wilbourne, 44 Mich App 376; 205 NW2d 250 (1973). This was a matter of trial strategy, not a matter of error. Further, the prosecution did not inquire into these convictions on cross-examination. Any testimony on the convictions then was instigated by the defense, not the prosecution. We conclude that the admission of the convictions was harmless error.

Affirmed.

       The judge did consider the second factor — that the probative value of admission outweighed any prejudicial eifect. In the future, however, both the judge’s discretion and all three of the Crawford (People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 [1978]) factors should be recognized on the record. People v Joyner, 93 Mich App 554, 560-561; 287 NW2d 286 (1980).