author: N. J. Kaufman, P.J.

text:
    PEOPLE v GREER
    Docket No. 78-2268.
    Submitted May 14, 1979, at Detroit.
    Decided June 20, 1979.
    William B. Greer was charged with possession of heroin. The Recorder’s Court of Detroit, Donald L. Hobson, J., after the commencement of a bench trial, dismissed the charge after concluding that heroin found on the defendant had been discovered as a result of an improper search. The prosecution appeals by leave granted. Held:

    1. The arrest and search was based on information supplied to a police officer by an informant who was known to the officer and who had supplied reliable information on five prior occasions. The information provided ample detail of the underlying circumstances from which the informant concluded that the defendant was selling narcotics. Also, the officer, upon going to the bar where the suspect was to be, found a person who matched the description given by the informant and who, in response to the officer’s inquiry, stated that his name was William Greer, the name which had been given to the officer by the informant. The officer had probable cause to arrest and to conduct a search without a warrant.
    2. Prior to trial defense counsel had full knowledge of the facts surrounding the arrest and search of the defendant but delayed until midtrial to make a motion to dismiss based on the search. Since the defense offered no good cause for not raising the issue earlier, the trial court abused its discretion in granting the motion to dismiss.
    3. The charge against the defendant was dismissed on a basis unrelated to his factual guilt or innocence and there was no determination of his guilt or innocence. Accordingly, retrial is not barred by the prohibition against double jeopardy.
    Reversed and remanded.
    References for Points in Headnotes

       5 Am Jur 2d, Arrest § 46.

       5 Am Jur 2d, Arrest § 44.

       21 Am Jur 2d, Criminal Law § 327.

       21 Am Jur 2d, Criminal Law § 214 et seq.

      1. Arrest — Constitutional Law — Probable Cause — Informants.
    An anonymous tip may be the basis for probable cause to make an arrest if the information in the tip is sufficiently corroborated by independent sources.
    2. Drugs and Narcotics — Arrest — Constitutional Law — Probable Cause — Informants.
    The test for determining when probable cause may be established in a narcotics arrest solely upon the basis of information from an informant is that (1) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were must be disclosed and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or his information was reliable must be shown; something more substantial is required than a casual rumor circulating in the underworld or an accusation based merely on general reputation.
    3. Criminal Law — Constitutional Law — Probable Cause — Informants.
    One recognized method of establishing the trustworthiness of an informant is a disclosure that he provided information on past occasions which later proved to be correct upon investigation.
    4. Criminal Law — Institution of a Prosecution — Defects — Motions — Waiver — Good Cause — Discretion — Recorder’s Court — Court Rules.
    A Recorder’s Court rule states that defenses and objections based on defects in the institution of a prosecution or in an information, other than that it fails to show jurisdiction in the court or to charge an offense, may be raised only by motion before trial; failure to timely present any such defense or objection constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver; granting relief from such waiver is an abuse of the court’s discretion where the defense does not comply with the "good cause” requirements (RCR 18).
    5. Constitutional Law — Double Jeopardy — Dismissal of Charges — Successful Appeal by Prosecution — Retrial — Redetermination of Guilt or Innocence.
    Retrial of a defendant on a criminal charge, after the prosecution’s successful appeal of a trial court’s dismissal of that charge on the defendant’s motion, is not barred by the constitutional prohibition against double jeopardy where the dismissal was on a basis unrelated to the defendant’s factual guilt or innocence and where, because the defendant persuaded the trial court that the defendant, although perhaps criminally culpable, could not be punished because of the lack of probable cause justifying his arrest and search of his person, there was no determination as to the defendant’s guilt or innocence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and E. Gail Willhardt, Assistant Prosecuting Attorney, for the people.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   N. J. Kaufman, P.J.

Defendant was charged with possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). On October 28, 1977, Recorder’s Court Judge Donald L. Hobson dismissed the charge after concluding that the search of the defendant was improper. Plaintiffs application for delayed leave to appeal was granted on July 26, 1978, and we reverse.

At the preliminary examination on June 22, 1977, police officer Daniel Keuhn testified that, on January 4, 1977, he received a phone call from a "reliable and credible informant”. Officer Keuhn had had previous contact with the informant and the informant was registered with the Detroit Police Department. Officer Keuhn’s five prior contacts with the informant had resulted in twelve arrests, two convictions, and one dismissal. The other nine cases were pending. The informant told Officer Keuhn that a person known to the informant as Steel Bill Greer, approximately 36 years old, was at that time at Duke’s Playhouse Bar. He was wearing a brown jacket, blue jeans and a brown cap. He was selling heroin which he kept in tan coin envelopes in his jacket pocket.

Officer Keuhn proceeded directly to the bar. Upon entering the bar, he saw a person fitting the description given to him by the informant. He walked up to that person, learned that his name was William Greer, and placed him under arrest for violation of the Controlled Substances Act. He took three tan coin envelopes containing an off-white powder from defendant’s right coat pocket. The substance appeared to be heroin.

At the conclusion of Officer Keuhn’s testimony, defense counsel argued that the informant’s tip alone could not provide sufficient probable cause for the arrest and search of defendant. Acting Recorder’s Court Judge Donald Neitzel rejected defendant’s argument and bound him over for trial on the possession of heroin charge.

On October 28, 1977, a bench trial began in Detroit Recorder’s Court. Officer Keuhn was the first witness presented by the prosecution. He testified that, acting on information received from a reliable and credible informant, he went to Duke’s Playhouse Bar on January 4, 1977. The informant had given him a description of someone selling heroin in the bar. Officer Keuhn saw defendant in the bar, approached him, asked him his name, and placed him under arrest. In the vestibule of a building next to the bar, Officer Keuhn searched defendant and found the coin envelopes believed to contain heroin.

At that point, defense counsel moved to dismiss the case because "in order to have probable cause he [the police officer] has to have made an independent investigation of his own that satisfies him”. The prosecutor argued that the motion should have been brought prior to trial. The court ruled that the search of the defendant was improper and granted the motion to dismiss.

After this ruling, the prosecutor asked the court if he could present testimony on the issue. He expressed concern that, by waiting until mid-trial to make a motion to dismiss, defense counsel had deprived the people of an opportunity to appeal. Officer Keuhn then testified as to his five prior contacts with the informant. All of the prior contacts with the informant had been in cases dealing with drugs. In all of those cases, searches of the persons named by the informant had turned up narcotics. With regard to defendant, the informant had told the police officer the identity of the person selling drugs and where he was located. The informant told Officer Keuhn that he knew the person was selling heroin because he had been present in the bar and had just witnessed a transaction. The officer arrived at the bar seven to ten minutes after receiving the information. The description given to Officer Keuhn by the informant was of a black male, approximately 36 years old, wearing a brown hat, brown jacket, white sweater and blue jeans, known to the informant as Steel Bill Greer. The defendant fit the description perfectly and, in response to Officer Keuhn’s question, stated that his name was William Greer.

After hearing this testimony of Officer Keuhn, Judge Hobson refused to change his earlier ruling granting defendant’s motion to dismiss. The plaintiff now appeals.

In dismissing the charge against defendant, the trial court accepted defense counsel’s argument that Officer Keuhn should have made an independent investigation of his own instead of relying solely on the information supplied to him by the informant. This ruling was clearly erroneous.

Recently, the Michigan Supreme Court held that an anonymous tip may be the basis for probable cause to make an arrest if the information in the tip is sufficiently corroborated by independent sources. People v Walker, 401 Mich 572; 259 NW2d 1 (1977). Since the tip in the instant case was not anonymous, Walker is readily distinguishable. However, the Supreme Court opinion also discussed the general test for determining the presence of probable cause when it is based solely on information supplied by an informant:

"The test for determining when probable cause may be established solely upon the basis of information from an informant or upon such information and corroborating facts has been developed in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969). In Aguilar, the United States Supreme Court held that probable cause for a warrantless arrest is established if the informant’s tip meets two requirements: (1) 'some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were’ must be disclosed, and (2) 'some of the underlying circumstances from which the officer concluded that the informant * * * was "credible” or his information "reliable” ’ must be shown. 378 US 108, 114. This two-prong test was further developed in Spinelli, where the affiant swore that his informant was reliable, but gave the magistrate no grounds to support his conclusion.
"In regard to the first prong of the test, the Spinelli Court said that '[i]n the absence of a statement detailing the. manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation’. 393 US 410, 416. The Court in Spinelli found the detail provided by the informant in Draper v United States, 358 US 307; 79 S Ct 329; 3 L Ed 2d 327 (1959), a 'suitable benchmark’. 393 US 410, 416. In Draper, the informant reported that the accused was selling narcotics and that he would return from Chicago by train on one of two days with narcotics. The informant also described Draper and his clothing and said that he would be carrying a tan zipper bag and that he habitually walked 'real fast’. As the Court explained in Spinelli, '[a] magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way’. 393 US 410, 417.
"Upon satisfying the first prong of the Aguilar test, it is then necessary to turn to the second prong, concerning the credibility or reliability of the informant himself. One recognized method of establishing the trustworthiness of the informant is a disclosure that the informant provided information on past occasions which later proved to be correct upon investigation. McCray v Illinois, 386 US 300; 87 S Ct 1056; 18 L Ed 2d 62 (1967).” Walker, supra, 580-583.

In the instant case, Officer Keuhn’s testimony amply detailed the underlying circumstances from which the informant concluded that defendant was selling narcotics. Further, the credibility and reliability of the informant were established through revelation of prior contacts with the informant. Therefore, the facts of this case satisfy the probable cause test for a warrantless arrest. See McCray, supra, Draper, supra, People v Heard, 65 Mich App 494, 496-497; 237 NW2d 525 (1975), and People v Daniels, 60 Mich App 458, 463-464; 231 NW2d 386 (1975). The trial court erred in concluding otherwise.

We also note that the trial court granted the motion to dismiss in mid-trial, before the prosecutor presented testimony regarding the basis of the search, despite defense counsel’s full knowledge of the issue before trial, and in the face of Recorder’s Court Rule 18, which states in relevant part:

"Any defense or objection, which is capable of determination without trial of the general issue, may be raised before trial by motion. Defenses and objections based on defects in the institution of the prosecution or in the Information, other than that it fails to show jurisdiction in the Court or to charge an offense, may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the Court for good cause shown may grant relief from the waiver.”

It is certainly true that the trial judge could exercise his discretion to consider the motion, but defense counsel offered no reason for the belated motion and did not comply with the "good cause” requirement of Rule 18. Under the facts of this case, therefore, the trial judge abused his discretion in granting defendant relief from his waiver of the issue. See People v Ferguson, 376 Mich 90, 93-96; 135 NW2d 357 (1965).

Finally, defendant’s retrial is not barred by the prohibition against double jeopardy. In United States v Scott, 437 US 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978), the United States Supreme Court held that reprosecution was not barred after a criminal defendant had successfully moved to dismiss, mid-trial, on the grounds that his defense had been prejudiced by pre-indictment delay. In Scott, the defendant had moved for dismissal both before and during trial. Overruling United States v Jenkins, 420 US 358; 95 S Ct 1006; 43 L Ed 2d 250 (1975), the Court held:

* * in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. We do not thereby adopt the doctrine of 'waiver’ of double jeopardy rejected in Green [v United States, 355 US 184; 78 S Ct 221; 2 L Ed 2d 199 (1957)]. Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice. In Green the question of defendant’s factual guilt or innocence of murder in the first degree was actually submitted to the jury as a trier of fact; in the present case, respondent successfully avoided such a submission of the first count of the indictment by persuading the trial court to dismiss it on a basis which did not depend on guilt or innocence. He was thus neither acquitted nor convicted, because he himself successfully undertook to persuade the trial court not to submit the issue of guilt or innocence to the jury which had been empaneled to try him.” (Footnote omitted.) Scott, supra, 437 US 98-99.

In the instant case, the charge against defendant was dismissed on a basis unrelated to his factual guilt or innocence on the charge of possession of heroin. The ruling of the trial court reflected that court’s legal judgment that the defendant, although perhaps criminally culpable, could not be punished because of the lack of probable cause justifying his arrest and the search of his person. Therefore, the defendant has been neither acquitted nor convicted. Compare People v Smith (On Rehearing), 89 Mich App 478; 280 NW2d 862 (1979), People v Killingsworth, 80 Mich App 45, 50-54; 263 NW2d 278 (1977), and People v Keith Lester, 78 Mich App 661, 663; 261 NW2d 33 (1977). Accordingly, retrial is not barred by the prohibition against double jeopardy.

Reversed and remanded for trial.


source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    DUEWEKE v MORANG DRIVE GREENHOUSES, INC.
    Docket No. 78-2487.
    Submitted April 5, 1979, at Detroit.
    Decided June 20, 1979.
    Leave to appeal applied for.
    Plaintiff Eric Dueweke voluntarily quit his job with defendant Morang Drive Greenhouses, Inc. in May, 1975. Plaintiff was disqualified from unemployment benefits for a period of six weeks because of his voluntary termination of his employment, pursuant to the Michigan Employment Security Act. Following the disqualification period, defendant Michigan Employment Security Commission made an initial determination that plaintiff was entitled to receive benefits. Defendant Morang promptly notified the commission that plaintiffs position was still available to him. The commission thereafter determined that plaintiff had failed without good cause to accept suitable work, and that he was thus disqualified from benefits pursuant to the act. Plaintiff appealed to a referee, who affirmed the commission’s determination. Plaintiff then appealed to the Michigan Employment Security Appeal Board, which affirmed. Plaintiff appealed to Wayne Circuit Court. Charles Kaufman, J., reversed the appeal board, holding that a person who was disqualified from benefits because of voluntarily quitting his employment and who thereafter became requalified could not, as a matter of law, be disqualified from benefits by reason of the refusal to accept the former employer’s offer of the same job. Defendant Morang appeals. Held:

    1. The provision of the Michigan Employment Security Act which disqualifies one from unemployment benefits for refusal without good cause to accept an offer of suitable work applies to a claimant who has been re-offered the job from which he voluntarily quit, notwithstanding the fact that said claimant had previously been disqualified for benefits for voluntarily quitting without good cause and had become requalified for benefits by waiting the statutory period. Such construction of the act is supported by: (a) the construction given by the Michigan Employment Security Commission; (b) the absence in the face of the commission’s construction, despite amendments to other portions of the act; (c) the fact that the contrary construction would result in an impermissible enlargement of the act’s definition of work deemed not suitable; (d) the construction given by sister states to their statutes; and (e) the plain language of the relevant section, which refers to all persons.

      References for Points in Headnotes

       76 Am Jur 2d, Unemployment Compensation § 68.

      2. A claimant is properly deemed to have refused suitable employment without good cause, and is thereby disqualified from unemployment benefits, where said claimant refuses to accept the re-offer of the job from which he voluntarily quit without good cause, and where it is found that the reasons causing his voluntary quit and refusal of reemployment were of a purely personal nature.
    Reversed.
    1. Unemployment Compensation — Suitable Employment — Refusal to Accept Employment — Disqualification — Statutes.
    Disqualification from unemployment benefits for refusal without good cause to accept an offer of suitable employment, as provided by the Michigan Employment Security Act, may result from the refusal to accept a re-offer of the job from which the claimant voluntarily quit without good cause, notwithstanding the fact that the claimant had already become requalified for benefits by waiting the statutory period after the voluntary quit disqualification (MCL 421.29[l][e]; MSA 17.531[l][e]).
    2. Unemployment Compensation — Suitable Employment — Good Cause — Statutes.
    A claimant is properly deemed to have refused suitable employment without good cause, and is thereby disqualified from unemployment benefits, where said claimant refuses to accept the re-offer of the job from which he voluntarily quit without good cause, and where it is found that the reasons causing his voluntary quit and refusal of reemployment were of a purely personal nature (MCL 421.29[l][e]; MSA 17.531[l][ej).

      Jeanne Mirer, for plaintiff.

      Cooney & Cooney, for defendant Morang.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and David A. Voges,
      Assistant Attorney General, for defendant Michigan Employment Security Commission.
    Amici Curiae: Beaumont, Smith & Harris (by Dwight H. Vincent and J. Walker Henry), ° for Michigan Manufacturers Association and Employers Unemployment Compensation Council.

      William Mazey, for International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Allen, J.

We are asked in this appeal to determine whether an employee who has voluntarily quit his employment through no fault of the employer and who has thereafter served the requisite statutory period so as to be requalified for unemployment benefits under § 29(3) of MCL 421.29; MSA 17.531 is again made ineligible for benefits if the same employer offers the same job to the employee and the employee, without good cause, refuses the job offer. Defendant Michigan Employment Security Commission answered this question in the affirmative. The trial court reversed, holding that as a matter of law the employee could not, by such offer, be made ineligible for benefits. On this question of apparent first impression, we hold the trial court erred.

Plaintiff commenced working for defendant, Morang Drive Greenhouses, Inc. (Morang), July 1, 1974, in a salaried position as supervisor of the retail employees, ordering merchandise and routing and dispatching of deliveries. Some 10-1/2 months later, on May 16, 1975, plaintiff voluntarily quit his job. Since he voluntarily qiiit he was disqualified for unemployment benefits for six weeks pursuant to § 29(3) of the Michigan Employment Security Act. MCL 421.29; MSA 17.531. At the end of the six-week period, defendant Michigan Employment Security Commission (MESC) made an initial determination that plaintiff was entitled to receive benefits, and so notified Mórang. Morang promptly notified MESC that "claimant’s position with us is still open”.

Upon instruction from MESC, plaintiff then presented Verification of Availability to Employers form (Form 1323) to his employer who completed the form, writing thereon that there was work available consisting of "the same job as he left” but the employee "refused the job due to a personality conflict with the general manager after leaving”. On November 12, 1975, MESC determined that plaintiff had failed without good cause to accept suitable work when offered him. When plaintiff protested, MESC issued a redetermination stating "claimant was disqualified for refusal of work with his former employer”. Plaintiff appealed to a referee who, following a full hearing, affirmed the MESC, and plaintiff appealed to the Michigan Employment Security Appeal Board. On June 9, 1977, the appeal board affirmed the decision of the referee.

Appeal was then taken to the Wayne County Circuit Court, which heard the matter on briefs and oral arguments, and, on May 25, 1978, reversed the decision of MESC saying:

■ "I think the issue in this case is whether or not, when the Legislature determined what the penalty is for a voluntary quit; that is, giving up a certain amount of weeks, getting benefits, whether or not they meant that to apply to the job that the man quit. And the question really is whether or not, if he’s offered that same job back, that amounts to the suitable employment that the Legislature talks about.
"I wouldn’t go so far as to say that the interpretation of the MESC would amount to a violation of the 13th Amendment to the United States Constitution, based upon involuntary servitude, but I think in one respect it comes close to it; and that is in this respect: I think they are losing sight of the fact that people aren’t cattle, but they are individuals with feelings and dignity and it would appear to this Court that being offered the same employment that this fellow voluntarily quit, and that he served a penalty, that is, whatever weeks the Legislature set, he’s disqualified. After serving this penalty, to be offered the same thing, I think amounts to a debasing of the individual.
"There’s nothing in the statute and there wouldn’t necessarily have to be, which says that being offered the same employment is equivalent to suitable offer of a job. However, I think it’s implicit, where the Legislature: first, didn’t mention the same employment, and second, where a penalty is specifically set for voluntarily quitting that employment. I don’t know whether I would use the word 'piggyback,’ but I think that its almost in the nature of something — that a penalty is served, and maybe trying to give a man a double penalty, because once he quit the job and serves a penalty, to say that not going back to that exact same job, he should serve that exact same penalty ad inñnitum, I think would be to greatly debase the individual.”

Two issues, each of public importance, are raised on appeal.

I.

After an employee has voluntarily quit his job and has served the requaliñcation period prescribed in §29(3) of the statute, does an offer by the same employer of the same job constitute an offer of suitable work, or is it as a matter of law an offer of unsuitable work?

From 1943 to 1965, an employee who voluntarily quit his employment without good cause attributable to his employer was disqualified from unemployment benefits "for the duration of his unemployment”. Since the disqualification from benefits for a voluntary quit without good cause was for the duration of the unemployment, the question of a subsequent disqualification for refusing to accept suitable work never arose. By 1965 PA 281, the Legislature removed the absolute bar from benefits for persons who had voluntarily quit without good cause by removing the language that made the disqualification "for the duration of the unemployment”. At the same time, § 29(3) was added to permit requalification for benefits.

The 1965 amendment gives rise to the question presented in this case, that being: Did the Legislature intend that a disqualification for refusal to accept suitable employment pursuant to § 29(l)(e) could follow a disqualification for a voluntary quit pursuant to § 29(l)(a), where there had been a requalification pursuant to § 29(3) and the job refused was the job from which the claimant had voluntarily quit? Two interpretations of the Legislature’s intent, each reasonable, may be made.

On the one hand, it can be said to mean that once an employee who voluntarily quits serves the initial requalification period he is fully eligible for benefits — § 29(l)(e) being only applicable to persons who leave their employer by some means other than voluntary quitting. This is the construction given the statute by plaintiff and the trial court.

On the other hand, it can be said that the legislation was a matter of compromise between those who would allow all voluntary quits and those who opposed such liberalization; that as a part of the compromise the Legislature intentionally restricted benefits for voluntary quits, the restriction being that if at the end of the disqualification period the employer again offered the same job to the quitting employee and the offer was turned down without cause, benefits would not be payable. Under this interpretation, § 29(l)(e) applies to all persons who leave employment, including persons leaving by voluntary quit. This is the interpretation adopted by MESC.

Five reasons persuade us that the latter interpretation of the statute is correct.

First, the agency charged with the administration of the statute has from the date of enactment of the statute construed the voluntary quit provision as being restricted by the re-offer of the same job. In the absence of cogent reasons, which we do not find here, the construction given a statute by the agency charged with its administration is persuasive. Magreta v Ambassador Steel Co, 380 Mich 513, 519-520; 158 NW2d 473 (1968). An almost identical factual situation arose in Bingham v American Screw Products, 57 Mich App 21; 225 NW2d 199 (1974), rev’d on other grds 398 Mich 546; 248 NW2d 537 (1976). There, plaintiff voluntarily quit his job and, as in the instant case, was disqualified from receiving benefits for six weeks. During the waiting period he returned to his home in Kentucky. At the end of the six-week waiting period he was offered his old job back but refused on grounds the distance from Kentucky to Michigan gave good cause to refuse. MESC agreed, not because it opposed the offer of the job but because it felt plaintiff had good grounds to refuse. The circuit court reversed. This Court affirmed, saying:

"It therefore follows that the offer of the same job at the same location that claimant voluntarily left without good cause attributable to the employer or employing unit is suitable work within the meaning of § 29(6). Since plaintiff does not claim that the old job was unsuitable for any reason other than the distance from the locality in which he presently resides, the work offered was suitable work as a matter of law. Plaintiff did not have ’good cause’ to refuse to report to his former employer and thus he is disqualifíed under § 29(l)(d) by reason of his failure to report to his former employer upon receiving notice of the availability of his old job.” (Emphasis added.) 57 Mich App at 29.

Because both our Court and the Supreme Court presumed, without deciding, in Bingham that a re-offer of the former job was a permissible practice, the language quoted above is technically dicta. Nevertheless, Bingham is persuasive to defendants’ cause because it clearly shows that both employers and the MESC interpreted the 1965 amendment as being qualified by the right of the employer to offer the same job at the end of the six-week period.

Second, when the Legislature amended the statute in 1975, no language was added to provide that a re-offer of the same job was not an offer of suitable employment. In 1975, House Bill 4843 was introduced proposing major increases in unemployment compensation benefits. As the bill moved through the Legislature, amendments were made so that the bill would also eliminate some of the abuses in the earlier statute. Among the abuses was the voluntary quit provision. As appears from the Third Analysis of HB 4843 prepared by the Analysis Section of the House of Representatives:

"There are many areas of potential abuse in the present act. Of particular concern to employers are the so-called 'voluntary quits’, i.e. persons who leave their jobs voluntarily and yet still collect unemployment benefits. By requiring a longer requalification period for such persons, the bill would discourage an employee from quitting a job in order to draw unemployment.”

No change was made in § 29(l)(e) so as to limit its application to persons leaving their employment by means other than by voluntarily quitting, nor was any language proposed to adopt a construction different from the interpretation made by the agency from 1965 on. Obviously, the Legislature knew of the long-standing MESC construction of the statute and was aware of Bingham. The failure of the Legislature to make any changes other than to increase the disqualification period from 6 to 13 weeks indicates legislative acquiescence to the agency’s interpretation.

Third, in ruling that as a matter of law an offer by the same employer of the same job cannot constitute suitable work under § 29(l)(e), the trial court impermissibly enlarged the provisions of § 29(7) of the statute. Section 29(7) lists the condition under which work is deemed unsuitable. It reads:

"Notwithstanding any other provisions of this act, work shall not be deemed suitable and benefits shall not be denied under this act to an otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; (b) if the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; (c) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining a bona fide labor organization.”

Express mention in a statute implies the exclusion of other things. Valenti Homes, Inc v Sterling Heights, 61 Mich App 537, 540; 233 NW2d 72 (1976). The conditions listed in § 29(7) do not include the condition set forth by the trial court. If the statute is to be enlarged, it should be the Legislature which should do so rather than the Court.

Fourth, other jurisdictions having the occasion to rule on this issue have held that an offer of the former job which the employee has voluntarily quit constitutes suitable work which, if refused without good cause, disqualifies the employee from benefits. SS Kresge Co v Unemployment Compensation Comm, 349 Mo 590; 162 SW2d 838 (1942). In Claim of Crowe, 280 App Div 427; 113 NYS2d 433, 435 (1952), aff'd 305 NY 699; 112 NE2d 780 (1953), a laundry worker voluntarily quit and, after serving her disqualification period, refused to accept a job offered by her employer. The appeal board held in favor of the employee, but the court reversed, saying:

"The statute however, carefully separates voluntary separation from refusal of employment. If they are separate events, as they certainly are in the record, they may not be given unitary treatment. The Division of Placement and Unemployment Insurance itself set in motion the 'offer of employment’ which was distinct in time and circumstance from the original separation.
"This offer of employment, even though from the former employer, fulñlled the statutory deñnition of an offer of employment and the effect of the separately provided penalty for 'refusal of employment’ cannot be avoided by the fact that the State agency selected the same employer to make an offer or renewed instead of entirely new employment.” (Emphasis added.)

Fifth, our statute, like New York’s, separates voluntarily leaving a job (§ 29[l][a]) from refusal to accept subsequent employment (§ 29[l][e]). In the instant case, the two events are long separated in time. The voluntary quit occurred in May, 1975, and the offer of the former job occurred five months later in October. Disparate acts are defined in disparate and separate sections of the statute. This, in itself, suggests the Legislature intended to deny benefits where the former job was refused without cause. Under plaintiff’s construction of the statute, § 29(l)(e) must be read as not applying to persons leaving their employment by voluntary quit. This is contrary to the plain language of the section which refers to all persons.

II.

Did the MESC properly ñnd that plaintiff failed without good cause to accept suitable employment when offered him?

The offer of former employment does not in itself disqualify an employee from drawing benefits. The employee may still draw benefits if he has good cause to reject the proffered job. Bingham, supra. Plaintiff argues that he is entitled to benefits because: (a) though there was some discussion about re-employment, there was no real offer made; (b) if an offer of employment was made, the employment was not suitable, and (c) plaintiff had good cause to reject the offer because he had job offers elsewhere, defendant had failed to keep past promises, and he had a personality conflict with the general manager of the store.

The standard of review of decisions of the referee or the appeal board is set forth in § 38 of the statute, MCL 421.38; MSA 17.540. That section provides that such determinations may be reversed "only if it [the Court] finds that the order or decision is contrary to law or is not supported by competent, material and substantial evidence on the whole record”. The record is clear that a job offer was made to plaintiff at the end of the disqualification period. Even the trial court so found when it stated "the facts in this case are pretty clear, that the claimant was offered, at least substantially the same job at substantially the same wages that he voluntarily quit”.

With respect to plaintiff’s claim (b) we are governed by the definition of job suitability as defined in § 29(6) of the statute. MCL 421.29(6); MSA 17.531(6). Under the criteria set forth therein, plaintiff’s former job appears suitable. Plaintiff had performed the job well for 10-1/2 months. He did not allege any risk to his health or safety and, unlike the situation in Bingham, supra, distance from residence to job was no problem.

Finally, we must decide whether plaintiff had good cause to reject the employment offered. In his decision of May 14, 1976, the referee found "that although claimant had good personal reasons for not wishing to return to the involved employer without an increase in pay, said reasons were not of such a nature to show good cause for refusing to accept suitable employment under § 29(l)(e), 29(6), and 29(7)(b) of the Act”. The testimony in the record discloses that plaintiff felt there was no room for advancement at the greenhouse, that he had been passed over for the management of another store, that he had a personality conflict with the store manager, and that he had other job offers.

The issue raised is a question of law. Do such reasons constitute "good cause” for refusal to work as that term is used in the statute? That question is answered in Losada v Chrysler Corp, 24 Mich App 656, 660; 180 NW2d 844 (1970), lv den 383 Mich 827 (1970), which held that personal reasons were not good cause under the statute. That decision was followed in a split decision in Keith v Chrysler Corp, 41 Mich App 708; 200 NW2d 764 (1972), affirmed by an equally divided Court 390 Mich 458; 213 NW2d 147 (1973). While the split in the Supreme Court decision casts doubt on the vitality of the Losada ruling, we are bound by the decision until it is changed by the higher Court. See Lasher v Mueller Brass Co, 62 Mich App 171; 233 NW2d 513 (1975).

Accordingly, we hold that plaintiff refused without good cause an offer of suitable work and thereby is disqualified for six weeks of unemployment benefits. Reversed. No costs, a public question being involved.

       In 1975, the period of disqualification in § 29(3) was increased from 6 weeks to 13 weeks. 1975 PA 110, effective June 6, 1975.

       "We have reviewed the Referee’s decision in the light of the evidence appearing in the record. It is our opinion that said decision is in conformity with the law and the facts.”

       It should be noted that when originally enacted in 1936, the Michigan Employment Security Act, then known as the Michigan Unemployment Compensation Act, provided that the disqualification from benefits for voluntarily quitting one’s employment without good cause was temporarily limited. See 1936 (Ex Sess) PA 1, § 29. It was only with the enactment of 1943 PA 246 that the disqualification from benefits for a voluntary quit was extended to the duration of the unemployment. While the pre-1941 language provided the opportunity for a situation not unlike that presented in this case, we have been unable to find any reported decision that would be of assistance herein.

       The changes made by the 1965 amendments were recognized in a Precedent Manual issued by the Michigan Employment Security Commission. Prior to issuance, the Manual is reviewed by the Attorney General’s office and approval given. Section 76.131 of the Manual, entitled "Suitable Work”, recognized that the employee may be offered the same job by the same employer and if the offer is refused without good cause may be disqualified more than once. It states:
      "76.131 Refusal Following a Prior DisqualiScation With Same Employer. Situations will occur where an employer will protest a claimant’s right to benefits because the claimant has failed to apply for, accept, or report to a former employer concerning, available suitable work and where there has been a prior adjudication on a previous offer, or where there has been a prior adjudication under other disqualifying provisions of Section 29 of the Act, such as voluntary leaving. The Commission cannot refuse to impose a disqualification for a subsequent refusal of work merely because the claimant had already been disqualified for quitting, or for refusing a previous offer, with the same employer. * * * It is recognized that adjudication of distinct acts, separations or discharges involving the same employer may result in the claimant being disqualiñed more than once, e.g., under the voluntary leaving and suitable work provisions of the Act. However, if the proper application requires a disqualification based on the issue at hand, then such disqualification must be made.” (Emphasis added.)

       The appeal in plaintiffs interpretation of the statute rests on the apparent inconsistency of allowing an employee to quit and draw benefits, but then denying benefits upon the re-offer of the same job. The flaw in the argument is that it assumes that when the Legislature granted the privilege it did so without qualification or restriction. The Legislature had reason to place some limits on the privilege. The number of voluntary quits is high. In 1977, there were 112,000 voluntary quits, even though the disqualification period had been raised to 13 weeks.


author: N. J. Kaufman, J.

text:
    ALBANYS v MID-CENTURY INSURANCE COMPANY
    Docket No. 78-2701.
    Submitted April 17, 1979, at Detroit.
    Decided June 20, 1979.
    Leave to appeal applied for.
    Plaintiff, Robert Albanys, by his guardian, Robert W. Albanys, sued defendant, Mid-Century Insurance Company, in the Wayne Circuit Court to recover no-fault personal protection benefits. Plaintiffs daughter, with whom the plaintiff lived, purchased a 1971 Oldsmobile from Thomas Slyfield and received from him the car, the keys and the signed, notarized title. However, the purchaser’s name was not placed on the transfer. Plaintiff intended to purchase the automobile from his daughter and gave her $600 of the $1100 purchase price and was to tender the balance on January 8, 1977. No assignment of title was executed. On January 7, 1977, Ms. Albanys took the license plates from a 1969 Pontiac, which was registered to her deceased mother, and put them on the 1971 Oldsmobile. Plaintiff then drove the car and was involved in the accident because of which he claims benefits. Plaintiff, at the time of the accident, was not a named insured on any no-fault policy, but his daughter was a named insured on a policy issued by defendant and covering a 1969 Plymouth. The trial court, Joseph A. Moynihan, Jr., J., granted defendant’s motion for summary judgment. Plaintiff appeals. Held:

    A person need not hold legal title to a vehicle to be an owner of it under the vehicle code. Mr. Albanys was a conditional vendee with an immediate right of possession, an "owner”, and, as such, was required to maintain no-fault insurance on the vehicle, and, therefore, may not collect personal protection benefits under his daughter’s policy.
    Affirmed.
    1. Automobiles — Statutes — “Owners” of Vehicles.
    A person need not hold legal title to a vehicle to be an owner of it under the vehicle code and a vehicle may be simultaneously "owned” by more than one person; a person who tenders a down payment on a Vehicle, who is to receive the title to the vehicle upon payment of the balance of the purchase price, and who has an immediate right or possession is an "owner” of the vehicle under the code (MCL 257.37; MSA 9.1837).

      References for Points in Headnotes

       8 Am Jur 2d, Automobile and Highway Traffic § 603.

       43 Am Jur 2d, Insurance § 1164.
    7 Am Jur 2d, Automobile Insurance § 220.

      2. Automobiles — Statutes — "Owners” of Vehicles.
    An "owner”, under the vehicle code, of a vehicle involved in an accident with respect to which the security required for the payment of personal protection insurance benefits was not in effect may not collect any personal protection insurance benefits for injuries sustained in the accident (MCL 508.3113; MSA 24.13113).

      Keane, Fellrath & Wendzel, P.C., for plaintiff.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. (by Thomas P. Rockwell), for defendant.
    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Plaintiff sued to recover no-fault personal protection insurance benefits from the defendant after plaintiff was injured in an automobile accident. Defendant’s motion for summary judgment was granted by opinion of June 15, 1978, after the trial judge determined that there was no insurance covering the vehicle driven by plaintiff. Plaintiff appeals by right and we affirm.

On January 5, 1977, Michele Albanys purchased a 1971 Oldsmobile from Thomas Slyfield. She received the car, its keys and the signed, notarized title from Mr. Slyfield. Ms. Albanys’ name, as the car’s purchaser, was not placed on the certificate of title. Ms. Albanys testified that she intended to sell the car to her father, the plaintiff, who was domiciled in her household. She received $600 of the $1100 purchase price from her father as a down payment for the car and was to receive the remaining $500 on January 8, 1977, but she never executed an assignment of title to her father and did not deliver the title to him.

On January 7, 1977, Ms. Albanys took the license plates from a 1969 Pontiac, which was registered to her deceased mother, and put them on the 1971 Oldsmobile. That evening plaintiff drove the car and was involved in an accident. He had planned to purchase insurance for the car the next day.

At the time of the accident, plaintiff was not a named insured on any no-fault insurance policy. However, plaintiff’s daughter was a named insured under a no-fault policy issued by defendant and covering a 1969 Plymouth. The Oldsmobile was not an insured vehicle under that policy, but plaintiff sought benefits under it because he was a relative of Ms. Albanys domiciled in her household.

The trial judge granted defendant’s motion for summary judgment and concluded:

"The Plaintiff failed to provide insurance for the vehicle.
"The daughter Michelle [sic] had no contract of insurance with Defendant or anyone else to cover the 1971 Oldsmobile.
"If she was the owner, as she claims she is, she has failed to maintain security for payment of benefits under personal protection insurance.
"To hold otherwise would be tantamount to saying to the public, purchase one car, properly cover it with insurance and then go out and take title to all the vehicles you choose, don’t inform your carrier of the added risks, let any number of members of your household drive the added vehicles with the assurance that if they are injured in an accident they will receive their lost wages, medical and dental expenses even though they may have caused the same.
"This Court cannot believe the Legislature intended such a result from the language of the Act as cited by Plaintiff.”

We agree with the trial judge’s result, but rest our conclusion on different grounds. This, of course, does not affect the ultimate resolution of the case. See Queen Ins Co v Hammond, 374 Mich 655, 658-659; 132 NW2d 792 (1965).

At the outset, we find that Ms. Albanys became the owner of the Oldsmobile on January 5, 1977. Title passed when the certificate of title was properly endorsed and delivered to Ms. Albanys at the time she was in possession of the vehicle. MCL 257.233(d); MSA 9.1933(d), and see MCL 257.239; MSA 9.1939, Kube v Neuenfeldt, 353 Mich 74, 80; 90 NW2d 642 (1958), Fleckenstein v Citizens’ Mutual Automobile Ins Co, 326 Mich 591; 40 NW2d 733 (1950). The inclusion of Ms. Albanys’ name on the certificate of title was unnecessary.

MCL 257.233(d) reads:

"The owner shall indorse on the back of the certificate of title an assignment thereof with warranty of title in the form printed thereon with a statement of all security interests in said vehicle or in any accessory thereon, sworn to before a notary public or some other person authorized by law to take acknowledgments, and deliver or cause the same to be mailed or delivered to the department or to the purchaser or transferee at the time of the delivery to him of such vehicle, which shall show the payment or satisfaction of any security interest as shown on the original title.”

The statute only requires an owner to 1) endorse the certificate of title and 2) deliver the certificate to the transferee. There is no requirement that the transferee’s name be placed on the certificate.

Additionally, the purpose of the statute is "to discourage and to prevent the stealing of automobiles, to protect the public against crime”. Endres v Mara-Rickenbacker Co, 243 Mich 5, 8; 219 NW 719 (1928). This objective is met by requiring that a signed, notarized title be delivered to a transferee in possession in order to transfer title. Requiring the transferee’s name on the certificate of title would not further the statutory purpose. The notarized signature of the transferor sufficiently insures that the transferor intends to sell the vehicle involved.

Plaintiff also became an owner of the Oldsmobile before the accident occurred. MCL 257.37; MSA 9.1837 provides in relevant part:

" 'Owner’ means
''(b) A person who holds the legal title of a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner.”

Thus, while as a general rule the owner of an automobile is the person in whose name the vehicle is registered with the Secretary of State and whose name is listed on the certificate of title, a person need not hold legal title to a vehicle to be an owner of it. John v John, 47 Mich App 413; 209 NW2d 536 (1973). Additionally, one or more persons may be the owner of a vehicle. Messer v Averill, 28 Mich App 62, 65, fn 2; 183 NW2d 802 (1970).

In the instant case, plaintiff was a conditional vendee owner of the Oldsmobile. A conditional sale is defined as one in which the transfer of title is made to depend on the performance of a condition, usually the payment of the price. Black’s Law Dictionary (4th ed), p 1504. Here, plaintiff had given his daughter $600 toward the purchase of the car and was to receive the certificate of title upon payment of an additional $500 on January 8, 1977. Plaintiff was, therefore, a conditional vendee. Further, plaintiff had an immediate right to possession at the time of the accident. Plaintiff was, therefore, an owner of the Oldsmobile at the time of the accident.

The cases cited by plaintiff, Messer v Averill, supra, and Gazdecki v Cargill, 28 Mich App 128; 183 NW2d 805 (1970), do not mandate a different conclusion. Those cases merely hold, under facts similar to those present here, that the transferor remains an owner of a vehicle. They do not state that the transferee is not an owner.

Having determined that plaintiff was an owner of the Oldsmobile at the time of the accident, it follows that he was required to maintain continuous security for payment of personal protection insurance benefits. See MCL 500.3101; MSA 24.13101, MCL 257.216; MSA 9.1916, MCL 257.33; MSA 9.1833. The penalty for failure to maintain this insurance is clear:

"A person is not entitled to be paid personal protection insurance benefits for accidental bodily injury if at the time of the. accident any of the following circumstances existed:
"(b) The person was the owner or registrant of a motor vehicle involved in the accident with respect to which the security required by subsections (3) and (4) of section 3101 was not in effect.” MCL 500.3113; MSA 24.13113.

Since plaintiff did not maintain the required insurance on the Oldsmobile involved in the accident, he cannot collect any personal protection insurance benefits.

This may seem like a harsh result, but the statute is plain. Additionally, plaintiff knew he had to purchase insurance for the Oldsmobile and originally intended to purchase insurance the day after the accident. Unfortunately, plaintiff did not have the required insurance at the time of the accident.

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


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

text:
    MORGAN v CINCINNATI INSURANCE COMPANY
    Docket No. 78-3514.
    Submitted March 7, 1979, at Detroit.
    Decided June 20, 1979.
    Leave to appeal granted, 407 Mich 898.
    Helen Morgan and her husband owned a house as tenants by the entireties. Cincinnati Insurance Company issued a policy of insurance on the house naming Helen and her husband as coinsureds. Helen had commenced divorce proceedings and the parties were living separately when her husband set fire to the house. Helen’s claim for house damage under the policy was denied and she brought an action against Cincinnati Insurance Company. Calhoun Circuit Court, Creighton R. Coleman, J., denied recovery as to any portion of the value of the realty on the grounds that plaintiffs husband was a party to the insurance contract and that his actions in starting the fire were tantamount to an attempt to defraud the defendant. Plaintiff appeals. Held:

    An innocent wife may recover under an insurance policy naming her and her husband as coinsureds covering realty if her interests are divisible from those of her husband who set fire to their house. But if the interests are joint and nonseparable she cannot recover. Helen Morgan and her husband owned the insured house by the entireties, where unity of time, interest, title and possession must exist. Under the circumstances, the Court of Appeals is unable to say that Helen has any divisible interest.
    Affirmed.
    1. Insurance — Coinsureds — Fraud — Bar to Recovery.
    Generally, where recovery is based upon a joint policy and the property is owned by the parties as joint tenants, or tenants by the entireties, an attempt to defraud by one of the insureds is a complete bar to recovery under the policy by the other party or parties.
    References for Points in Headnotes

       43 Am Jur 2d, Insurance § 762.

       43 Am Jur 2d, Insurance § 298.

      2. Insurance — Coinsureds — Fraud — Bar to Recovery.
    An innocent insured may recover under an insurance policy if his or her interests are divisible from those of a coinsured who is involved in an attempt to defraud situation; but if the interests are joint and nonseparable he or she cannot recover.

      Birkhold, Newland, Birkhold & Hord, for plaintiff.

      Allen, Worth & Hatch (by Kurt F. Letzring), for defendant.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and Bashara, JJ.
   D. E. Holbrook, Jr., P.J.

This appeal arises as a result of a trial court entry of partial summary judgment in favor of defendant. Plaintiff and her husband owned a house as tenants by the entire-ties. Plaintiff had commenced divorce proceedings and the parties were living separately when plaintiffs husband set fire to the house. Defendant had previously issued a policy of insurance on the house naming plaintiff and her husband as coinsureds.

The trial court granted partial summary judgment in favor of the plaintiff as to certain of the personalty in the house. Such award is not however part of the instant appeal. Recovery as to any portion of the value of the realty was denied on the grounds that plaintiffs husband was a party to the insurance contract and his actions in starting the fire were tantamount to an attempt to defraud defendant.

Monaghan v Agricultural Fire Ins Co, 53 Mich 238; 18 NW 797 (1884), stands for the proposition that an attempt to defraud by one of the insureds is a complete bar to recovery under the policy. Moreover, this view has nationwide support espedaily when recovery is based upon a joint policy and the property is owned by the parties as joint tenants or tenants by the entireties. Anno: Fraud, false swearing, or other misconduct of insured as barring recovery on property insurance by innocent coinsured, 24 ALR3d 450.

While the Supreme Court in Simon v Security Ins Co, 390 Mich 72; 210 NW2d 322 (1973), has modified the Monaghan concept by holding that if the coinsured’s interests are divisible then the innocent insured may recover whereas if the interests are joint and nonseparable he or she cannot; this does not lend assistance to plaintiffs claim. Here the parties owned the insured house as tenants by the entireties where unity of time, interest, title and possession must exist. Under the circumstances we are unable to say that any divisible interest exists under a tenancy by the entire-ties. Plaintiffs claim, therefore, that the trial court erred in granting partial summary judgment in favor of defendant lacks merit in the law.

It is with extreme reluctance that we hold as we do. In all probability had the parties proceeded to divorce the plaintiff would have been awarded at least a part of the marital home. By allowing the husband to deliberately destroy its value and deny the wife her ultimate due, seems harsh. The trial court could, however, grant the wife a sum certain to rectify the apparent inequity provided the husband was collectible. However, there is no certainty as to this. We would, therefore, hope the Supreme Court would take a further and fresh look at this most perplexing problem toward the end that an innocent tenant by the entireties would not be punished by the other’s wilful and wrongful acts. While perhaps we could hold other than we do, we feel bound by precedent. If a change in the law is to take place it should be by action of the Supreme Court, whose dictates we are duty bound to follow.

Affirmed. No costs.


author: Danhof, C.J.

text:
    HAMILTON v SUPERIOR MUSHROOM COMPANY
    Docket No. 78-3614.
    Submitted April 17, 1979, at Detroit.
    Decided June 20, 1979.
    Plaintiff Robert Hamilton was totally and permanently disabled in a fall while on the job when he, as a minor, was employed by his father, plaintiff Norman Hamilton, who was an electrical contractor under contract to defendant Superior Mushroom Company. At the time of the injury Norman Hamilton had no workmen’s compensation insurance. Robert Hamilton filed a petition with the Bureau of Workmen’s Compensation against Superior Mushroom and, later, amended the petition to include the Second Injury Fund as a defendant and to substitute Norman and Lillian Hamilton, his parents, as plaintiffs. The hearing referee awarded Robert disability benefits and ordered the Second Injury Fund to pay differential benefits at the single rate. Plaintiffs appealed to the Workmen’s Compensation Appeal Board alleging that, under the statute, Robert was entitled to double compensation. The appeal board affirmed. Plaintiffs appeal by leave granted. Held:

    The section of the Worker’s Disability Compensation Act which provides that an employer subject to the act who contracts with another who is not subject to the act or who has inadequate coverage is liable to an injured employee of the other as "if the [employee] had been immediately employed by him” does not operate to subject the employer to double liability under the statute where the injured employee is a minor employed without a permit under an exception to the Hittle Juvenile Employment Act.
    Affirmed.
    Workmen’s Compensation — Juveniles — Double Recovery.
    The section of the Worker’s Disability Compensation Act which provides that an employer subject to the act who contracts with another who is not subject to the act or who has inadequate coverage is liable to an injured employee of the other as "if that [employee] had been immediately employed by him” does not operate to subject the employer to double liability under the statute where the injured employee is a minor employed without a permit under an exception to the Hittle Juvenile Employment Act (MCL 409.14, 418.161[b],. 418.171; MSA 17.714, 17.237[161][b], 17.237[171]).

      References for Points in Headnotes
    81 Am Jur 2d, Workmen’s Compensation § 165.

      Goodman, Eden, Millender & Bedrosian, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard Zapala, Assistant Attorney General, for defendant Second Injury Fund.
    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   Danhof, C.J.

Plaintiff Robert Hamilton (hereinafter plaintiff) appeals an administrative decision awarding him worker’s compensation benefits as a permanently and totally disabled employee. Appealed is that portion of the hearing referee’s decision granting plaintiff "single” benefits only, rather than "double” benefits pursuant to subsection 161(b) of the Worker’s Disability Compensation Act of 1969, MCL 418.161(b); MSA 17.237(161)(b). The claim against defendant Superior Mushroom Company and its carrier has been redeemed. As to the remaining defendant, Second Injury Fund, the Workmen’s Compensation Appeal Board has affirmed the referee’s award of single benefits. We affirm the appeal board.

Superior Mushroom Company hired plaintiff’s father, d/b/a Hamilton Electric, to do electrical work on a building project. Plaintiff worked for his father, and was injured while on the Superior Mushroom building project. The accident has left him permanently and totally disabled. At the time of injury plaintiff was a minor under the age of 18, working without a permit. His father did not carry workmen’s compensation insurance.

On these facts plaintiff claims he is entitled to double compensation from the defendants pursuant to the Hittle Juvenile Employment Act, MCL 409.1 et seq.; MSA 17.701 et seq., and the Worker’s Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq. The Hittle act proscribes the employment of any minor without a permit, MCL 409.3; MSA 17.703, except by the parent of such minor in a trade in which the parent is self-employed or in a business owned and operated by the parent. MCL 409.14; MSA 17.714. Subsection 161(b) of the Worker’s Disability Compensation Act entitles a minor to double recovery for injuries related to an illegal employment. Section 171 of the compensation act provides that an employer (principal) subject to the act who contracts with any other person (contractor) who is not subject to the act or who does not have the requisite compensation coverage is liable to an injured employee of the contractor as "if that workman had been immediately employed by him [principal]”. Plaintiff acknowledges under this statutory scheme his employment was not in fact illegal, since he was immediately employed by his father. However, plaintiff seems to claim that, under § 171 of the Worker’s Disability Compensation Act, a principal’s liability for double compensation does not depend on whether the employment is in fact illegal. From the literal language of § 171, plaintiff reasons, the principal’s liability depends on whether the employment would be illegal if the principal were the immediate employer.

A majority of the Workmen’s Compensation Appeal Board held the plaintiff is not entitled to double benefits because his employment was in fact legal at the time of the injury. The majority reasoned that plaintiff’s literal application of the statutory language would be contrary to the statutory purposes. We affirm for that same reason.

Because the language of §§ 171 and 161 is ambiguous as applied to the facts of this case, we must construe the language by reference to the purpose of the statutes and the objects sought to be accomplished. See Royal Oak School Dist v Schulman, 68 Mich App 589; 243 NW2d 673 (1976).

Section 171 was intended to protect employees of contractors and. subcontractors against their employers’ failure to obtain adequate workmen’s compensation insurance. Davidson v Wayne County Board of Road Comm’rs, 86 Mich App 592; 272 NW2d 740 (1978). That object is accomplished by making the principal liable to pay benefits that the immediate employer otherwise would be obligated to pay. We agree with the majority of the appeal board that the Legislature apparently did not intend the liability of the principal to be greater than the liability of the immediate employer. This is evident, for example, from the method chosen to calculate benefits — "with reference to the earnings of the workman under the employer by whom he is immediately employed”— and by the provision for indemnification of the principal by the immediate employer. MCL 418.171; MSA 17.237(171).

The double compensation provision of § 161 was intended to be a penalty against employers to discourage the illegal employment of minors. See Farm Bureau Ins Co of Michigan v Pedlow, 3 Mich App 478; 142 NW2d 877 (1966).

Plaintiffs proposed construction of § 171 as applied to this case would be contrary to the apparent purposes of the statute because it would extend the liability of the principal beyond the liability of the immediate employer. Plaintiffs proposed construction would not further the purposes of § 161 because it would discourage employments that are legal.

In addition we note plaintiffs interpretation could lead to an absurdity. Because of the indemnification provision in § 171, plaintiffs interpretation would ultimately double the liability of the immediate employer, even though the immediate employer is in fact guilty of no misconduct for which he deserves to pay double compensation.

Affirmed. Costs to defendant-appellee.

       We note at this point, while the Worker’s Disability Compensation Act was not in effect at the time of plaintiff’s injury, the sections relied on by plaintiff are in all material respects the same as prior statutes. Compare MCL 418.161; MSA 17.237(161) and MCL 418.171; MSA 17.237(171) with MCL 411.7; MSA 17.147 and MCL 411.10; MSA 17.150.

       Thus, plaintiff concedes, "In a claim for worker’s compensation benefits against his own father, plaintiff would be entitled to receive only single compensation because the Hittle Act makes legal the employment of minors in a business owned and operated by his parents.” Although in the last part of his brief, plaintiff attempts to show this exclusion does not apply to employments that are "injurious to health or morals or unduly hazardous”, we find that claim to be insubstantial. See MCL 409.2, 409.14; MSA 17.702, 17.714.


author: Per Curiam. Beasley, P.J.

text:
    ARCHER v BURTON
    Docket No. 77-3085.
    Submitted December 8, 1978, at Detroit
    Decided June 20, 1979.
    Leave to, appeal denied, 407 Mich —.
    Tim Archer approached Don Hirkey in a bar owned by Leo Burton and challenged Hirkey to a fight, to which Hirkey agreed. They walked to the parking lot and Archer pulled a knife on Hirkey. Hirkey disarmed Archer and stabbed him with the knife. Archer sued Hirkey for damages for assault and battery and Burton for violation of the dramshop act, alleging that Burton had served beer to Hirkey while Hirkey was visibly intoxicated. The Wayne Circuit Court, Harry J. Dingeman, Jr., J., following a jury verdict entered a judgment of no cause of action for both defendants. Plaintiff appeals, alleging error in the trial court’s instructions to the jury. Held:

    The jury instruction complained of predicated the liability of the bar owner upon the liability of defendant Hirkey. Such an instruction is not generally applicable to all dramshop actions and therefore should not be used. In this case, however, if the jury believed Hirkey acted in self-defense then he did not act wrongfully and the bar owner could not be liable to Archer.
    Affirmed.
    Beasley, P.J., concurred in the result only. He would affirm on the basis that defendant Hirkey is a party to the action because of the "name and retain” provision of the dramshop act and the instructions to the jury required a consideration of him as a party in the action.
    Opinion op the Court
    1. Intoxicating Liquors — Dramshop Act — Elements of Action.
    A plaintiff, in order to maintain a dramshop action, must show that (1) he was injured by the wrongful or tortious conduct of an intoxicated person, (2) the intoxication of that person was the sole or contributing cause of the plaintiffs injuries, and (3) the bar owner sold the visibly intoxicated person liquor which caused or contributed to his intoxication.

      References for Points in Headnotes

       45 Am Jur 2d, Intoxicating Liquors §§ 566, 582 et seq.

       45 Am Jur 2d, Intoxicating Liquors § 582 et seq.

       45 Am Jur 2d, Intoxicating Liquors § 585.
    Liability of liquor furnisher under Civil Damage or Drawship Act for injury or death of intoxicated person from wrongful act of third person. 65 ALR2d 923.

      2. Intoxicating Liquors — Wrongful Activity — Dramshop Act.
    An intoxicated person who voluntarily engages in a fistfight is engaging in wrongful activity; therefore, even if the intoxicated person is not liable to an injured plaintiff because of the theory of self-defense or mutual fight, a bar owner might still be liable to the plaintiff if the intoxication was a contributing factor to the defendant’s engaging in the fight.
    Concurrence in Result by Beasley, P. J.
    3. Intoxicating Liquors — Dramshop Act — Instructions to Jury — Statutes.

      An instruction to a jury which predicated a bar owner’s liability to the plaintiff upon the liability of a defendant who was intoxicated when in claimed self-defense he indicted injury upon the plaintiff was appropriate where the intoxicated person was a party to the action because of the "name and retain” provision of the dramshop act (MCL 436.22; MSA 18.993).

      Eugene S. Hoiby, for plaintiff.

      Hibbs, Lewis & Golden, P.C., for defendant Burton.
    Before: Beasley, P.J., and Bronson and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff sued defendant Hirkey for assault and battery and defendant bar owner for violation of the dramshop act. MCL 436.22; MSA 18.993. The jury returned a verdict of no cause of action against both defendants. The trial court entered a judgment for defendants pursuant to the verdict and plaintiff appeals by right.

Defendant bar owner served beer to defendant Hirkey who was allegedly visibly intoxicated. Later, while defendant Hirkey was still at defendant Burton’s bar, plaintiff approached him and repeatedly challenged him to step outside for a fight. Hirkey finally agreed, and the two stepped out into the parking lot. Hirkey admitted at trial that but for the fact that he was intoxicated, he probably would not have so readily agreed to fight. Once in the parking lot, plaintiff pulled a knife on defendant. While plaintiff was momentarily distracted, defendant disarmed him and stabbed him with the knife.

Plaintiff claims that the trial court committed reversible error in giving the following instruction requested by defendant bar owner:

"As I have indicated to you in the claims of the parties which have been read to you, the plaintiffs suit claims that defendant Hirkey was the aggressor. If you find that defendant Hirkey was not the aggressor and only used reasonable force for self-defense then you shall find for both defendants, Hirkey and Burton. If you find that defendant Hirkey used excessive and unreasonable force then you shall find for the plaintiff against the defendant, Hirkey. The plaintiff cannot recover for assault if you find that he first attacked the defendant, unless it appears that the defendant used more force than was necessary in repelling the attack.
"If you find for the plaintiff against defendant Hirkey then you shall consider whether the defendant Burton is liable also.”

Plaintiff objected to the instruction at trial stating that a dramshop action against a bar owner was separate and distinct from the cause of action against the intoxicated person and did not rest on any theory of derivative liability. Conversely, defendant bar owner contends that a bar owner’s liability is limited only to injuries resulting from the wrongful or tortious actions of the intoxicated person. Therefore, since it is not wrongful to defend oneself, if the jury found that the principal defendant acted in self-defense, it must find that he did not act wrongfully; thus, the bar owner cannot be liable, and the instruction was correct.

We find that the instruction given in this case is not generally applicable to all dramshop actions and therefore it should not be used since in many cases it might constitute reversible error. However, under the unique circumstances of this case, the instruction correctly informed the jury of the applicable law and did not constitute reversible error.

In order to maintain a dramshop action, the plaintiff must prove that 1) he was injured by the wrongful or tortious conduct of an intoxicated person, 2) the intoxication of the principal defendant was the sole or contributing cause of plaintiff’s injuries, and 3) the bar owner sold the visibly intoxicated person liquor which caused or contributed to his intoxication. See Wyatt v Chosay, 330 Mich 661, 668-669; 48 NW2d 195 (1951), Pesola v Pawlowski, 45 Mich App 516, 518-519; 206 NW2d 780 (1973). Therefore a bar owner’s liability can only be predicated upon the wrongful activity of the intoxicated person.

It is not wrongful to defend oneself; however, it is wrongful to voluntarily engage in a fight. See Galbraith v Fleming, 60 Mich 403; 27 NW 581 (1886), People v Sherman, 14 Mich App 720; 166 NW2d 22 (1968), Anno: Consent as defense to charge of criminal assault and battery, 58 ALR3d 662 (1974). It is for this reason that the instruction given in the present case is not generally appropriate. If an intoxicated person voluntarily engages in a fistfight, he is engaging in wrongful activity. Therefore, even if the intoxicated person is not liable to the plaintiff on the theory of self-defense or mutual fight, the bar might still be liable to the plaintiff if the defendant’s intoxication by the bar was a contributing factor to his engaging in the fight.

This scenario did not occur, however, in the present case. Although defendant agreed to engage in a fistfight, the mere agreement itself was not wrongful activity. The wrongful activity occurs only when the agreement is acted upon. In the present case, upon arriving in the parking lot, the fistfight which defendant Hirkey had agreed to did not take place. Instead, plaintiff pulled a knife on defendant thereby exceeding the scope of the agreement and terminating it. At this point the parties were left in a basic attack and defend situation. Plaintiff attacked defendant with the knife and defendant defended himself. Since it is not wrongful to defend oneself when attacked, if the jury believed that defendant acted in self-defense in this situation, he could not have acted wrongfully and the bar could not have been liable. Therefore, under the circumstances of this case, the instruction correctly stated the law and did not prejudice plaintiff.

Affirmed.

Beasley, P.J.

(concurring). I concur in the result only.

As the trial judge indicated and as the evidence makes unmistakably clear, this is a "name and retain” case, i.e., defendant Hirkey is a party to this suit only because the 1972 "name and retain” amendment to the dramshop act requires it. Conduct of the trial, denial of defendant Hirkey’s motion for directed verdict on completion of plaintiffs case, instructing of the jury, and the fact that on appeal plaintiff does not even ask for a new trial against defendant Hirkey, are only understandable in the context of the "name and retain” amendment. Thus, I cannot join the opinion of the majority which chooses to ignore the name and retain amendment. However, while we follow different paths to decision, both opinions affirm the jury verdict.

       Trial courts should give SJI 27.04.

       In the absence of excessive force, a person may not recover civil damages from other participants in a voluntary affray. White v Whittal, 113 Mich 493; 71 NW 1118 (1897), Galbraith, supra.

       Due to our resolution of the instructional issue, we need not address the issues raised in the concurring opinion.

       MCL 436.22; MSA 18.993.


author: Per Curiam:.

text:
    PEOPLE v ALLEN
    Docket No. 77-5114.
    Submitted April 11, 1979, at Lansing.
    Decided June 20, 1979.
    Violet M. Allen was convicted of first-degree murder, Ingham Circuit Court, Michael G. Harrison, J. Mrs. Allen confessed to the crime of killing her husband, stating that she shot him in the back while he was sleeping in the bedroom and then followed him downstairs to the kitchen where she shot him a second time. The prosecution presented testimony that prior to killing her husband, defendant stated she wanted him killed and on two occasions had talked to friends about trying to find a hit man to kill him, a task for which she was willing to pay $500, and finally $1,000. On appeal, defendant alleges that her confession and all of her statements concerning the crime may not be used to establish the corpus delicti of the murder. Held:

    The only way the prosecution could prove premeditation, which is a necessary element in first-degree murder, was through defendant’s confession or through the statements she made prior to the murder. In Michigan, the corpus delicti of a crime cannot be established by the extra-judicial confession of an accused; therefore, defendant’s confession was not admissible to establish the corpus delicti of the crime. That rule, however, only precludes confessions and admissions which necessarily amount to a confession from being used to establish the corpus delicti. Statements made by an accused prior to the time the crime was committed do not amount to confessions, because at the time they were made no crime had been committed and there was nothing to confess or admit to. Statements made prior to the time of the crime are admissible and can be used to establish the corpus delicti of the crime.
    Affirmed.
    1. Criminal Law — Corpus Delicti — Definitions — Evidence — Elements.
    The traditional definition of the corpus delicti of any felonious homicide has been a dead body with a criminal agency as its cause; however, in Michigan, the Supreme Court has stated that in order to establish the corpus delicti of first-degree murder, the prosecution must show not only the above-mentioned elements, but also prove the element of premeditation, which distinguishes first-degree murder from second-degree murder.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 81.

       29 Am Jur 2d, Evidence § 530.

      2. Criminal Law — Corpus Delicti — Evidence — Extra-Judicial Confessions.
    The corpus delicti of a crime cannot be established by the extrajudicial confession of an accused.
    3. Criminal Law — Corpus Delicti — Evidence — Confessions and Admissions.
    Statements made by an accused prior to the time the crime was committed do not amount to confessions and can be used to establish the corpus delicti of a crime, because the statements were made at a time when no crime had been committed and therefore there was nothing to confess or admit to.

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

      Karl A. H. Bohnhoff, for defendant.
    Before: V. J. Brennan, P.J., and Bronson and Cynar, JJ.
   Per Curiam:.

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548. She was sentenced to life imprisonment and now appeals by right.

Jimmy James Allen, defendant’s husband, was found shot to death in the kitchen of his Lansing home. An autopsy showed that he had received two gunshot wounds, one a superficial wound to the back and a second wound which had punctured his right lung and ruptured his aorta causing him to bleed to death. Defendant confessed to the crime, stating that she went upstairs to the bedroom where her husband was sleeping and shot him in the back. Her husband got out of bed, and ran downstairs to the kitchen. Defendant said she followed him and then shot him a second time. The prosecution also presented testimony that prior to killing her husband, defendant stated she wanted her husband killed and on two occasions had talked to friends about trying to find her a hit man to kill her husband, a task for which she was willing to pay $500, and finally $1,000.

Defendant’s first allegation of error concerns the use of her statements to establish the corpus delicti of first-degree murder and causes us to examine the scope and extent of the corpus delicti rule.

The traditional definition of the corpus delicti of any felonious homicide has been a dead body with a criminal agency as its cause. See La Fave and Scott, Criminal Law, § 4, p 16. These requirements were certainly met in the present case as the placement of the mortal wounds excludes the possibility of their being self-inflicted. In Michigan, however, our Supreme Court has stated that in order to establish the corpus delicti of first-degree murder, the prosecution must show not only the two above-mentioned elements, but must also prove the element which distinguishes first-degree murder from second-degree murder which, in the present case, is premeditation. People v Sparks, 393 Mich 135; 224 NW2d 481 (1974), People v Allen, 39 Mich App 483, 494; 197 NW2d 874 (1972) , dissenting opinion, Levin, J-, adopted by the Supreme Court, 390 Mich 383; 212 NW2d 21 (1973) .

The physical and circumstantial evidence in this case does not appear in and of itself to establish the element of premeditation. Therefore* the only way the prosecution could have proven premeditation was through defendant’s confession or through the statements made by defendant prior to the murder.

It has long been the rule in this state that the corpus delicti of a crime cannot be established by the extra-judicial confession of the accused. People v Allen, 390 Mich 383; 212 NW2d 21 (1973), People v Ranney, 153 Mich 293; 116 NW 999 (1908). Therefore, defendant’s confession could not have been used to establish the corpus delicti.

' Defendant also contends, however, that all of her statements, not just her confession, must be excluded when establishing the corpus delicti. We do not agree.

The corpus delicti rule only precludes confessions and admissions which necessarily amount to a confession from being used to establish the corpus delicti. See People v Porter, 269 Mich 284, 290; 257 NW 705 (1934), People v Allen, 39 Mich App 483, 505, fn 23; 197 NW2d 874 (1972). Statements made by the accused prior to the time the crime was committed do not amount to confessions, because at the time they were made no crime had been committed and therefore there is nothing to confess or admit to. Thus, statements made prior to the time the crime was committed can be used to establish the corpus delicti of the crime. Warszower v United States, 312 US 342; 61 S Ct 603; 85 L Ed 876 (1941), People v Randall, 42 Mich App 187; 201 NW2d 292 (1972).

Adoption of defendant’s arguments that all statements of the accused should be excluded coupled with the Supreme Court’s decision that premeditation must be shown to establish the corpus delicti of first-degree murder would effectively preclude convictions for first-degree murder in a vast number of cases. Since finding a body with one bullet hole in it does not usually provide circumstantial evidence of premeditation, the cold, calculated one-shot murderer could not be convicted of first-degree murder unless an eyewitness saw him deliberately aim and shoot his victim. Therefore, if we adopted defendant’s position, we would be rewarding the killer for the skill of his marksmanship and his cleverness in shielding his activities from the view of other people. This we will not do.

Defendant’s other allegations of error do not merit discussion or reversal.

Affirmed.

       Although there are references in Judge (now Justice) Levin’s opinion in Allen that the corpus delicti cannot be established by the statements of the accused (Allen at 497, 505), we feel this labeling was inadvertent and in no manner expands the opinion beyond the question presented which was whether
      "[T]he corpus delicti of first-degree murder can be established without evidence independent of the accused person’s confession [emphasis added] of the essential element that distinguishes the offense of second-degree murder from first-degree murder.*’ Allen at 494.
      We are led to this conclusion because the vast majority of the references in the opinion are to defendant’s confessions not merely defendant’s statements.