text:
    ORTON v MARKWARD & KARAFILIS, INC.
    Docket No. 31544.
    Submitted November 3, 1977, at Detroit.
    Decided May 23, 1978.
    David N. Orton was killed on a construction project when he fell five stories from a moveable hoist attached to the structure of the building under construction. Susan Orton, administratrix of the estate of David N. Orton, recovered a judgment for the death of Mr. Orton, her husband, from Markward & Karafilis, Inc. Markward & Karafilis, Inc., was the prime contractor on the project and the owner of the hoist. The deceased was an employee of Detroit Elevator Company. Defendant Markward brought Detroit Elevator in as a third-party defendant, claiming that Markward was entitled to indemnity or contribution from Detroit Elevator on the theories that Detroit Elevator was a bailee of the hoist at the time of the fatal accident and that Detroit Elevator was actively negligent while Markward was only passively negligent. Judgment for third-party defendant Detroit Elevator on the matter of indemnification, Wayne Circuit Court, Thomas J. Brennan, J. Defendant Markward appeals. Held:

    There was no right of indemnification on the theories raised, bailment and passive negligence. There was no bailment relationship sufficient for indemnification because one of Mark-ward’s employees had exclusive control over the operation of the hoist. Markward was guilty of active negligence and therefore was not entitled to indemnification on the second theory raised.
    Affirmed.
    1. Indemnity—Equity—Restitution.
    Indemnification rests on the equitable principle of a right to restitution.
    References for Points in Headnotes

       41 Am Jur 2d, Indemnity §§ 1, 2.

       8 Am Jur 2d, Bailments §§ 138, 221.

       8 Am Jur 2d, Bailments §§ 54-56.

       8 Am Jur 2d, Bailments §§ 258, 259.

       41 Am Jur 2d, Indemnity § 15.

      2. Indemnity—Bailment.
    A bailment relationship may entitle a bailor to indemnification from the bailee in some cases.
    3. Bailment—Delivery of Personal Property—Trust—Transfer to Bailee—Exclusive Custody and Control.
    A bailment requires the delivery of personal property in trust; in order to constitute a sufficient delivery of the subject of the bailment, there must be a full transfer to the bailee so as to exclude the possession of the owner and all other persons and to give to the bailee the sole custody and control of the property.
    4. Bailment—Hoist—Maintenance of Control by Bailor—Indemnification—Wrongful Death.
    An alleged bailor was not entitled to indemnification from an alleged bailee, on a bailment theory of indemnification, for damages sought from the bailor for a wrongful death allegedly caused by the negligent maintenance of the hoist where the alleged bailor had exclusive control over the lowering and raising of the hoist.
    5. Indemnity—Negligence—Active Negligence.
    A party who is guilty of active negligence is not entitled to indemnification from another alleged tortfeasor.

      Joselyn, Rowe, Jamieson & Grinnan, P. C., for defendant and third-party plaintiff Markward & Karafilis, Inc.

      Sullivan, Ranger, Ward & Bone, for third-party defendant Detroit Elevator Company.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   Per Curiam.

Plaintiff Susan Orton, as administratrix of her husband’s estate, recovered a judgment for the death of her husband against defendant prime contractor, Markward and Karafilis, Inc., on a construction project. The decedent, an employee of third-party defendant Detroit Elevator Company, fell five stories to his death from a moveable "material hoist” owned by Markward and attached to the structure of the building under construction. Plaintiffs basic theory was that the hoist was negligently maintained in an unsafe condition and that it was not equipped with safety devices required under state law and labor department regulations.

Claiming indemnity or contribution, Markward brought Detroit Elevator in as a third-party defendant. Markward predicated its claim for indemnification or contribution on the .theories that Detroit Elevator was a bailee of the hoist at the time of the fatal accident and that Detroit Elevator was "actively” negligent in failing to properly instruct its employees on safety precautions, whereas Markward argued it was merely "passively” negligent in failing to comply with "technical” safety regulations. Although the trial judge denied Detroit Elevator’s initial motion for summary judgment, the judge granted its motion for a directed verdict on the grounds that if Markward was found liable to plaintiff it would be because of Markward’s active fault, thus depriving Markward of a right of indemnification as a matter of law. After the entry of the judgments, Markward moved for a new trial against Detroit Elevator and the trial judge denied the motion on the grounds that Markward’s active negligence precluded its action for indemnification. This appeal followed.

We affirm the trial court. Defendant Markward is not entitled to indemnification under either of its proposed theories—bailment or passive negligence_

First, Markward argues that the use of the hoist, to load and unload materials, by employees of Detroit Elevator constituted a bailment. Consequently, Markward argues, it is entitled to indemnification. In Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972), the Michigan Supreme Court noted that indemnification rests on the equitable principle of a right to restitution. In listing several types of legal relationships which may give rise to indemnification, the Court noted that the right to indemnification has been given in some bailment situations. Dale, supra, at 705. The Court did not say the existence of a bailment relationship always entitles a bailor to indemnification from the bailee, but only that such a relationship has been the basis for indemnification in some cases.

No bailment existed in this case. A bailment requires the delivery of personal property in trust. In re George L Nadell & Co, Inc, 294 Mich 150, 154; 292 NW 684 (1940). In order to constitute a sufficient delivery of the subject of the bailment, there must be a full transfer to the bailee so as to exclude the possession of the owner and all other persons and to give to the bailee the sole custody and control thereof. 8 Am Jur 2d, Bailments, § 56, p 961. As a general rule, the creation of a bailment requires the possession and control over the subject matter pass from the bailor to the bailee. 8 Am Jur 2d, Bailments, § 54, p 960.

In this case it is clear that Markward’s employee, one Cecil Hawkins, had exclusive control over the raising and lowering of the hoist. At the time of the fatal accident, Mr. Hawkins had locked the hoist into place and was inside the building structure.

Under the above-cited criteria for the creation of a bailment relationship, a bailment did not exist here. The mere use of the hoist, attached to the building structure and controlled by Markward’s employee, is not sufficient to create a bailment.

Secondly, Markward argues its negligence was "passive” in nature whereas Detroit Elevator’s failure to properly instruct employees on safety precautions was "active” negligence. In Dale the Court recognized that indemnification might be proper where one of two parties is guilty of only "passive” negligence while the second party is guilty of "active” negligence. Dale at 705. The concepts of active and passive fault were recently discussed in Provencal v Parker, 66 Mich App 431; 239 NW2d 623 (1976). Under the principles enunciated in Provencal, Markward is not entitled to indemnification since Markward was guilty of active negligence.

As noted by the trial judge in his written opinion denying a new trial, the allegations in plaintiff’s complaint sounded in active negligence. Further, the instructions framed the liability issue in terms of active negligence concepts. While Mark-ward claims its mere technical violations of the statute could only be passive negligence, this contention ignores the fact that the instructions clearly indicated that these statutory violations were to be considered evidence of negligence. The out of state cases cited by Markward are not on point since they deal with statutory causes of action, whereas the instant case deals with a negligence fault standard. We uphold the trial judge’s ruling that Markward was guilty of active negligence and therefore precluded as a matter of law from compelling indemnification from Detroit Elevator.

Affirmed.

       We note that defendant Markward and Karafilis, Inc., sought, and was denied, contribution from the corporation which had contracted with Markward to construct the hospital. Markward and Karafilis, Inc v Detroit Osteopathic Hospital Corp, 77 Mich App 728; 258 NW2d 161 (1977).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HANSON v ART POST AMERICAN, INC.
    Docket No. 77-525.
    Submitted March 6, 1978, at Grand Rapids.
    Decided May 23, 1978.
    Rose C. Hanson, plaintiff, purchased an American Motors car from Art Post American, Inc., in May of 1972. On October 2, 1972, plaintiff was injured in an automobile accident as a result of the failure of the car’s steering gear assembly. On October 3, 1975, plaintiff filed suit for damages for her injuries against American Motors Corporation, General Motors Corporation, General Motors Corporation Saginaw Steering Gear Division, and Art Post American, alleging breach of warranty and failure to comply with the terms and provisions of the Uniform Commercial Code. Defendants General Motors, American Motors, and Saginaw Steering Gear Division moved for accelerated judgment on the grounds that the action was barred by the three-year statute of limitations. Defendant Art Post American moved to dismiss for the same grounds and for failure to state a cause of action. The Kalamazoo Circuit Court, Donald T. Anderson, J., granted the motions of American Motors, General Motors and Saginaw Steering Gear Division, and denied the motion of Art Post American, holding that the UCC four-year statute applied to it. On rehearing, the court reversed itself and granted Art Post American’s motion. Plaintiff appeals as to the Art Post American judgment. Held:

    The four-year statute of limitations for actions based on breach of contract for sale applies only to actions based on breaches of express contractual provisions; it does not apply to breaches of implied warranties.
    Remanded for further proceedings.
    Limitation of Actions—Sales—Contracts for Sale—Implied Warranty.
    The four-year statute of limitations for actions based on breach of contract for sale applies only to breaches of specific contractual provisions and does not apply to a breach of an implied warranty (MCL 440.2725[1]; MSA 19.2725[1]).
    Reference for Points in Headnote
    51 Am Jur 2d, Limitation of Actions §§ 92, 102, 103, 105.

      Cornell, Dalzell & Sullivan, for plaintiff.

      Lilly, Piatt, Doyle & Kragt (by Jeffery B. Horton), for defendant Art Post American.
    Before: M. F. Cavanagh, P. J., and D. E. Holbrook and Beasley, JJ.
   Per Curiam.

In May, 1972, plaintiff, Rose C. Hanson, purchased an American Motors automobile from defendant, Art Post American. The sale was completed and delivery was tendered and accepted in May of that year in Michigan. In her complaint, which was dated and filed October 3, 1975, plaintiff alleged that on October 2, 1972, she was injured in an automobile accident as a result of the failure of the automobile’s steering gear assembly. Suit was instituted against American Motors Corporation; General Motors Corporation; General Motors Corporation, Saginaw Steering Gear Division; and Art Post American.

The complaint alleged a breach of warranty by all defendants, that plaintiff was the original purchaser of the automobile and that all defendants "failed the terms and provisions of the Uniform Commercial Code”. The suit was instituted one day after the expiration of the general three-year statute of limitations, MCL 600.5805(7); MSA 27A.5805(7), but within the four-year statute provided by the Uniform Commercial Code, MCL 440.2725(1); MSA 19.2725(1).

Defendants General Motors, American Motors and Saginaw Steering Gear Division filed motions for accelerated judgment on the grounds that more than three years had elapsed between the accrual of the action and the filing of the complaint and the suit was therefore barred by the general three-year statute of limitations. Defendant Art Post American filed a motion to dismiss on the same grounds as the other defendants, which motion the court treated as a motion for accelerated judgment pursuant to GCR 1963, 116.1(5). Art Post also filed a motion to dismiss on the ground that the complaint failed to state a cause of action, which the court treated as a motion for summary judgment pursuant to GCR 1963, 117.

In an opinion and order dated April 27, 1976, the trial court granted the motions filed by General Motors and American Motors and General Motors Corporation, Saginaw Steering Gear Division. It also denied both of Art Post American’s motions, holding that the four-year statute of limitations provided under the UCC applied to it. However, upon rehearing, the trial court reversed its earlier decision and granted defendant Art Post’s first motion holding that the general three-year statute of limitations applied. It is from this order granting defendant’s motion based on the three-year statute of limitations that plaintiff appeals.

The issue presented in this Court is whether the general three-year statute of limitations or the four-year limitation period set out in the UCC applies in the present case. The general three-year statute of limitations is set out in MCL 600.5805; MSA 27A.5805, and provides in part as follows:

"No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”

MCL 440.2725(1); MSA 19.2725(1), provides:

"An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than 1 year but may not extend it.”

Michigan also has a six-year statute of limitations which applies to actions to recover damages for sums due for breach of contract. MCL 600.5807; MSA 27A.5807. The distinctions between the applicability of the general three-year statute of limitations and the six-year statute of limitations has been discussed in several Michigan cases. In Weeks v Slavik Builders, Inc, 384 Mich 257; 181 NW2d 271 (1970), State Mutual Cyclone Ins Co v O & A Electric Cooperative, 381 Mich 318; 161 NW2d 573 (1968), Baatz v Smith, 361 Mich 68; 104 NW2d 787 (1960), and Coates v Milner Hotels, Inc, 311 Mich 233; 18 NW2d 389 (1945), there were contractual relations between the parties to the litigation. However, as was later noted in Huhtala v Travelers Ins Co, 401 Mich 118; 257 NW2d 640 (1977), the general three-year statute of limitations was applied in State Mutual, Baatz and Coates while the six-year limitation was applied in Weeks. In Huhtala the Court held that the distinction in those cases centered on whether the plaintiffs claim arose out of a breach of an express contractual provision or whether the claim was one implied by law.

None of the above cited cases resolves the question in the present case. However, a similar question was presented and answered in Reid v Volks wagen of America, Inc, 512 F2d 1294 (CA 6, 1975). There, the driver of a Volkswagen was injured in an automobile accident and brought suit against the manufacturer to recover damages for those injuries. There was no privity of contract between plaintiff and defendant in that case. Despite this lack of privity, the Sixth Circuit Court of Appeals held, noting that Michigan had rejected the privity requirement, that the four-year statute of limitations of the UCC applied and that the plaintiffs action was not barred by the general three-year statute of limitations. However, while the analysis in that case is helpful in the decision of the present case, the holding there is not in accord with the dicta in several recent Michigan Supreme Court cases. In Southgate Community School District v West Side Construction Co, 399 Mich 72, 78; 247 NW2d 884 (1976), reh den 400 Mich 951 (1977), the Court held that:

"The manufacturer’s duty to the consumer with regard to products which it puts into the stream of commerce does not generally arise out of a contract for sale, and is therefore not limited by the UCC * * *. By its terms, UCC § 2-725 applies only to an 'action for breach of any contract for sale’, and was not meant to apply to actions between consumers and manufacturers who were never in any commercial relationship or setting.”

See Parish v B F Goodrich Co, 395 Mich 271; 235 NW2d 570 (1975), Waldron v Armstrong Rubber Co (On Remand), 64 Mich App 626; 236 NW2d 722 (1975), lv den, 399 Mich 895 (1977).

While it seems clear that Michigan courts will not apply the four-year limitation of the UCC where a consumer brings an action for recovery against the manufacturer where there is no contractual relation or any commercial relationship or setting, it is not clear what limitation will apply where there is privity between the parties.

The policy considerations of the UCC extend § 2-725’s operation to all claims based on an agreement of the parties to the litigation and to all actions based on warranties implied from the agreement. However, such an extension does not necessarily follow from prior Michigan decisions. The Supreme Court has consistently indicated in dicta that the three-year statute of limitations is applicable in all cases where the claim is for damages for injury to person or property except where that injury results from the breach of a specific contractual provision. Huhtala v Travelers Ins Co, supra. Therefore, the same reasoning which was applied in that case will be applied here.

In order to apply this rule, however, it is necessary for this Court to remand the cause to the lower court to determine whether defendant has breached a contractual provision with regard to the steering mechanism. If there is such a specific provision in the sales contract, the four-year limitation set out in the UCC should be applied and the trial court’s order granting accelerated judgment in favor of defendant, Art Post American, should be set aside and trial held. However, if the court finds that the cause of action arose out of the breach of an implied warranty, the three-year limitation period should apply, thus barring plaintiffs action.

The cause is remanded for further proceedings consistent with this opinion. Costs to await final disposition of the case.


text:
    PEOPLE v JONES
    Docket No. 77-751.
    Submitted April 21, 1978, at Detroit.
    Decided May 23, 1978.
    Dale D. Jones was convicted of armed robbery, and on a supplemental information, he was also convicted of being a second-felony offender, St. Clair Circuit Court, Halford I. Streeter, J. At the trial, the court allowed the introduction of evidence of three other robberies, in which, according to three separate witnesses, the defendant participated, to help establish the identity of the perpetrator of the charged offense. The defendant appeals, claiming error in the admission of the so-called "similar acts” evidence and claiming that his conviction as a second-felony offender should be vacated as the prior conviction on which it was based was the result of an unconstitutional plea proceeding. Held:

    1. The admission of the evidence of two of the other robberies, which were of hotels, as was the robbery for which the defendant was being tried, was proper under the similar acts statute as evidence tending to show the identity of the perpetrator, which was a major issue at trial. Evidence of the third robbery, which was significantly different than the robbery for which the defendant was charged, should not have been admitted into evidence under the similar acts statute because of its dissimilarity with the crime charged; however, the admission of such evidence was harmless error because other evidence pointed overwhelmingly to the defendant’s guilt.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 298, 320-326.
    Admissibility at trial of criminal case, of evidence of defendant’s criminal acts other than those charged—Supreme Court cases. 93 L Ed 185.

       29 Am Jur 2d, Evidence § 322.

       29 Am Jur 2d, Evidence § 367.
    30 Am Jur 2d, Evidence § 1143.

       29 Am Jur 2d, Evidence §§ 251-253.

       5 Am Jur 2d, Appeal and Error § 806.

       21 Am Jur 2d, Criminal Law §§ 487-491.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

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

    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 7-9.
    What constitutes former "conviction” within statute enhancing penalty for second or subsequent offense. 5 ALR2d 1080.

       21 Am Jur 2d, Criminal Law §§ 182, 481.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §32.

      2. The defendant’s earlier plea-based conviction may have been constitutionally infirm and the matter is remanded to the trial court so that the defendant may raise the issue there.
    Remanded for further proceedings.
    1. Criminal Law—Evidence—Similar Acts—Intent or Plan—Materiality—Statutes.
    The similar acts statute allows evidence of similar acts to attempt to establish, among other things, a defendant’s intent or plan; however, for the evidence to be admissible, such intent or plan must be material to the case; evidence of a plan may be material if a connection is established between the facts and circumstances of the similar bad acts and the charged offense (MCL 768.27; MSA 28.1050).
    2. Criminal Law—Evidence—Similar Acts—Identity of Defendant.
    Evidence of a defendant’s similar acts may be admissible in order to establish identity.
    3. Criminal Law—Evidence—Identity.
    The matter of identity is a paramount issue in a criminal case where a defendant’s entire defense is that the victim of the crime for which he is on trial has intentionally or inadvertently misidentified the defendant as the perpetrator of the crime.
    4. Criminal Law—Identity—Evidence—Similar Acts—Uncharged Offense.
    An inference of identity arises when the marks common in a charged and an uncharged offense, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in doing so, tend to suggest that the perpetrator of the uncharged offense was the perpetrator of the charged offense.

      5. Criminal Law—Evidence—Similar Acts—Identity.
    It was not an abuse of discretion for a trial judge to admit evidence of two other hotel robberies at a defendant’s trial for the armed robbery of another hotel where the evidence was relevant and its probative value, to show identity, outweighed its potential prejudicial effect to the defendant.
    6. Criminal Law—Evidence—Similar Acts—Prejudicial Impact— Probative Value.
    Material evidence of similar acts must be excluded when its prejudicial impact substantially outweighs its probative value.
    7. Criminal Law—Evidence—Similar Acts—Lack of Similarity— Abuse of Discretion—Harmless Error.
    It was an abuse of the trial court’s discretion to allow the introduction of evidence that a defendant committed a grocery store robbery sis a similar act tending to identify the defendant as the perpetrator of an armed robbery of a hotel where the grocery store robbery bore little similarity to the hotel robbery, and its probative value did not outweigh its prejudicial impact; however, such error was harmless beyond a reasonable doubt where the other evidence in the case pointed overwhelmingly to defendant’s guilt.
    8. Criminal Law—Plea of Guilty—Waiver—Right to Confront Accusers—Right to Remain Silent—Presumption of Innocence—Compulsory Process.
    The plea process under which a defendant pled guilty was inadequate and erroneous where the transcript of the plea-taking session discloses that the defendant was not advised that he was waiving his right to confront his accusers, his right to remain silent, his right to be presumed innocent and his right to have compulsory process.
    9. Appeal and Error—Criminal Law—Habitual Offender—Prior Conviction—Preserving Issue—Sentencing.
    A defendant cannot, on appeal, attack a conviction under the habitual criminal statute on the basis that his prior conviction was invalid when the claim was never presented or asserted in the trial court; however, the issue may be raised at the trial court level and once the defendant has attacked the allegedly invalid plea in the trial court, he may present the issue of sentencing to the Court of Appeals.
    10. Constitutional Law—Criminal Law—Double Jeopardy—Evidence—Similar Acts—Prior Acquittal.
    It is not a violation of the double jeopardy clause to admit under the similar acts statute evidence of a crime, other than the charged offense, of which the defendant has already been acquitted.
    11. Appeal and Error—Criminal Law—Habitual Offender Statute—Preserving Issue.
    A challenge as to the constitutionality of the habitual offender statute has not been preserved for appeal, absent a showing of manifest injustice, where there has been no objection at either the hearing on the habitual offender information or the sentencing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, Peter R. George, Chief Appellate Attorney, and David R. Heyboer, Assistant Prosecuting Attorney, for the people.

      Lawrence Baron, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P. J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

Charged with armed robbery, MCL 750.529; MSA 28.797, defendant Dale Jones was convicted of the offense by a jury on November 4, 1976. The prosecutor filed a supplemental information, charging defendant as a second felony offender, MCL 769.10; MSA 28.1082. Sentenced on December 20, 1976, to a term of 20 to 40 years in prison, defendant appeals as of right.

Defendant charges numerous errors to the trial court. We need address ourselves at length to only two of these allegations.

Defendant was charged with and convicted of the armed robbery of a Howard Johnson Motel. The prosecutor introduced evidence of three other armed robberies in which, according to the testimony of three separate witnesses, defendant participated. Defendant contends the introduction of such evidence was error and not, as the prosecutor claimed, admissible under the similar acts statute.

MCL 768.27; MSA 28.1050, the similar acts statute, states:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

The trial judge instructed the jury that they could utilize the evidence of similar acts for two purposes:

"First, such testimony can aid you in determining whether the defendant was engaged in an intentional plan of robbery. * * * Second, such testimony can help you in resolving the question of identification of the defendant as the man who robbed Charles Benenati.”

Defendant objects that, though the statute allows similar acts to be used to establish intent, the statute requires that the intent must be "material” to the case. Defendant is correct. See People v Spillman, 63 Mich App 256, 260-261; 234 NW2d 475 (1975), rev’d on other grounds, 399 Mich 313; 249 NW2d 73 (1976), and cases cited therein. But it is arguable, reviewing the trial court’s instruction, that the similar acts were not introduced to show intent, but to show an intentional plan. Evidence of a plan may be material if a connection is established between the facts and circumstances of the similar bad acts and the charged offense. People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

But apart from the intentional plan element, the prosecutor used the similar acts to try to establish identity. Though not mentioned in the statute, it is permissible to prove identity through the use of similar acts.

" 'Identity’ which is always an essential element in a criminal prosecution is not mentioned in the statute but clearly may be proved by the use of similar acts evidence. People v Kelly, 386 Mich 330; 192 NW2d 494 (1971).” People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976).

See, also, People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977).

The matter of identity was a paramount issue in the case. Jones’ entire defense was that Charles Benenati, the victim, has intentionally or inadvertently misidentified him.

In this case, the prosecution, for the purpose of showing identity, introduced evidence of three other robberies. One of the robberies was of a grocery store; one was of a Holiday Inn and one was of another Howard Johnsons. In using evidence of similar acts other offenses are admissible to

"prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.” McCormick on Evidence (2d Ed), § 190, p 449.

In this case the similarities between the robbery at issue and the robberies at the Holiday Inn and the other Howard Johnsons are legion. As both sides point out:

1) All three occurred in relatively the same time period.
2) All three occurred in the same area.
3) All three involved a hotel.
4) All three involved use of a weapon (though as defendant points out the weapons were different).
5) All three involved assailants in their twenties.
6) In all three, the assailants had afros.
7) All three involved a man in a dark coat.
8) All three occurred in the late evening.
9) All three involved a man who pulled the lapel of his coat over his face.
10) All three involved money being taken from a cash register.
11) All three involved a victim who was told to stay on the floor until the assailant left.

Defendant argues that a distinctive pattern was not formed. We do not agree.

After concluding that no pattern was formed, defendant, referring to all the similarities which he himself acknowledges, asks, "Just how else would an assailant act?” In a multitude of ways, is the obvious reply. Defendant admits to marked similarities in these three robberies, from the description of the assailant to the covering of his face with his coat lapel to the type of business robbed to the time and area of the robbery.

"[T]he inference of identity arises when the marks common in the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” People v Haston, 69 Cal 2d 233, 246; 70 Cal Rptr 419; 444 P2d 91 (1968).

The inference of identity here arises from the grave similarities between the three robberies of the three hotels. While no one factor in itself is unique, in combination they form a singular pattern which suggests that the perpetrator of the first two robberies is the perpetrator of the robbery at issue.

We cannot say that the trial judge abused his discretion in admitting evidence of the two other hotel robberies. It was relevant and its probative value, i.e., to show identity, outweighed its potential prejudicial effect to the defendant. People v Smedley, 37 Mich App 325; 194 NW2d 383 (1971).

The prosecution also introduced evidence of a grocery store robbery for the purpose of showing identity. This robbery bore little similarity to the hotel robberies, both uncharged and charged. No distinctive similarities existed which would be sufficiently probative of the defendant’s identity to allow the admission into evidence of the grocery store robbery. On the contrary, the dissimilarities were notable. Whereas in the charged offense there was but one assailant, in the grocery robbery there were two; in the grocery store robbery the assailant personally took the money, while in this case the clerk handed the money to the assailant; in the grocery store case, the victim’s personal cash was not taken, but in this case it was; in the grocery store robbery the assailants did not attempt to disguise their appearances, while in this case the assailant covered his face; whereas in the grocery store case bystanders were present, in the charged offense no bystanders were present.

The trial court abused its discretion by allowing in evidence of the grocery store robbery. Material evidence of similar acts must be excluded when its prejudicial impact substantially outweighs its probative value. People v Corbeil, 77 Mich App 691; 259 NW2d 193 (1977), citing People v Oliphant, supra. This evidence should not have been admitted. But its impact was harmless beyond a reasonable doubt. Other evidence in the case, including that of the two other hotel robberies, pointed overwhelmingly to defendant’s guilt. People v Fisher, supra, at 14, People v Wilkins, supra, at 272.

We conclude that the admission of evidence of the two hotel robberies was proper under MCL 768.27, and that though the admission into evidence of the grocery store robbery was an abuse of discretion, such error was harmless beyond a reasonable doubt.

Defendant also claims he is entitled to have his conviction as an habitual offender, second felony, vacated by this Court on the ground that the prior conviction on which it was based was unconstitutional. This claim of unconstitutionality has never been presented to the trial court.

In 1970, defendant pleaded guilty to unarmed robbery. The transcript of his plea discloses that defendant was not advised that he was waiving his right to confront his accusers, his right to remain silent, his right to be presumed innocent and his right to have compulsory process. The plea process was inadequate and erroneous even under the standards extant at the time. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972) (the standards of which have been held applicable to any plea taken after the decisional date of Boykin). At a minimum the trial court should have advised defendant of his right to confront his accusers and his right to remain silent.

The prosecutor does not argue that the plea, as taken, was not in violation of defendant’s constitutional rights. Rather, he urges that because appellant did not raise the alleged unconstitutionality at the trial court level, he does not have standing to collaterally attack the 1970 conviction on appeal.

It is true that there are a number of decisions in the Court of Appeals which state that defendant cannot attack a conviction under the habitual criminal statute on the basis that his prior conviction was invalid when the claim was never presented or asserted in the trial court. The issue cannot be raised for the first time on appeal. People v Hendrick, 52 Mich App 201; 217 NW2d 112 (1974), People v Covington, 70 Mich App 188; 245 NW2d 558 (1976), People v Mays, 77 Mich App 389; 258 NW2d 87 (1977).

However, the issue may be raised at the trial level. See People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Once defendant has attacked the invalid plea in the trial court, he may present the issue of sentencing to the Court on appeal. Contrary to the prosecutor’s contention, Moore does not stand only for the position that an out-of-state conviction may be attacked. It also directs that an in-state conviction may likewise be attacked. We therefore remand the case to the trial court in order for appellant to present the issue of the unconstitutionality of his 1970 guilty plea.

We briefly address others of the issues plaintiff presents. He claims that it violates the double jeopardy clause to admit under the similar acts statute evidence of another crime of which defendant has already been acquitted. People v Oliphant, supra, decided this issue adversely to the defendant.

Defendant’s contention that the prosecutor vindictively retaliated against defendant by supplementing him simply because he chose not to plead guilty and to exercise his right to a trial has been adequately addressed in Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978).

Finally, defendant claims that the habitual offender statute is unconstitutional. Not having objected on this ground at either the hearing on the habitual offender information or the sentencing, the issue has not been preserved for appellate review in the absence of manifest injustice. See People v Penn, 70 Mich App 638; 247 NW2d 575 (1976).

Remanded for proceedings consistent with this opinion.


author: Per Curiam. D. E. Holbrook, Jr., J.

text:
    PEOPLE v BAINES
    Docket No. 77-1058.
    Submitted January 11, 1978, at Detroit.
    Decided May 23, 1978.
    Eric Baines was on probation for conviction of a crime when he was charged with armed robbery. A probation revocation hearing was held and defendant’s probation was revoked. He then was convicted on his plea of guilty of armed robbery in Recorder’s Court of Detroit, Samuel C. Gardner, J. Defendant appeals alleging that the holding of a probation revocation hearing prior to trial was fundamentally unfair and a denial of due process and his subsequent plea was involuntary because of the resulting duress. Held:

      A probationer may have his probation revoked for engaging in subsequent criminal activity even if acquitted of the crime charged and probation may properly be revoked either before or after trial on the new criminal charge.
    Affirmed.
    D. E. Holbrook, Jr., dissents. He would find it fundamentally unfair to hold such a probation revocation hearing prior to trial because of its chilling effect on a probationer’s right to due process and privilege against self-incrimination. He would hold that the prosecutor must either postpone the revocation hearing until after trial or grant the probationer limited immunity to testify.
    Opinion of the Court
    1. Criminal Law—Probation—Probation Revocation Hearing— Burden of Proof.
    A probationer may have his probation revoked for engaging in subsequent criminal conduct even if acquitted of the crime charged in the subsequent case; the burden on the prosecution in a criminal trial is to prove the defendant guilty beyond a reasonable doubt and in a probation revocation hearing is to prove the defendant guilty by a preponderance of the evidence.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 567.

       21 Am Jur 2d, Criminal Law §§ 359, 495.

      Dissent by D. E. Holbrook, Jr., J.
    2. Criminal Law—Probation—Probation Revocation Hearing— Due Process—Self-Incrimination.

      It is fundamentally unfair to a probationer to hold a revocation hearing prior to the trial on a subsequent offense where the sole basis for revoking probation is a ñnding that the probationer committed the subsequent offense; such a procedure chills a probationer’s exercise of his right to due process and privilege against self-incrimination.

    3. Criminal Law—Plea of Guilty—Appeal and Error—Due Process—Self-Incrimination.

      A guilty plea does not constitute a waiver of rights grounded in the due process clause; thus a plea of guilty does not waive error claimed in criminal proceedings which chilled a defendant’s rights to due process and privilege against self-incrimination.

    4. Criminal Law—Probation—Probation Revocation Hearing— Limited Immunity.

      A prosecutor should have the option of either postponing a probation revocation hearing until after the trial for a subsequent offense or proceeding with the revocation hearing prior to trial but granting the probationer limited immunity as to testimony given in the earlier revocation hearing where the basis for revocation of probation is the commission of a subsequent criminal offense; such testimony or the fruits thereof should be admissible at a subsequent trial on the substantive criminal charge only for purposes of impeachment or rebuttal where the testimony or the fruits thereof at the revocation hearing and the testimony of the defendant on direct examination at trial are so clearly inconsistent as to warrant admission to reveal to the trier of fact the probability of perjury.

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

      Finn, VanDusen & Freud, for defendant.

      Before: Allen, P. J., and D. E. Holbrook, Jr., and M. J. Kelly, JJ.
   Per Curiam.

Defendant appeals from his plea-based conviction for armed robbery. MCL 750.529; MSA 28.797. His arguments on appeal focus on the timing of the plea hearing in this case and probation revocation proceedings in another case.

Defendant was already on probation for a previous conviction when he was charged with the instant armed robbery. That probation was revoked as a result of this charge. The revocation hearing was held and a sentence was imposed in the other case before defendant pled guilty on this armed robbery charge. A part of the bargain offered to the defendant in return for his plea of guilty was a promise that his sentence in this case would not exceed the sentence imposed following the probation revocation and that both sentences would run concurrently. That bargain was kept by the prosecution and the trial judge.

On appeal, defendant argues that where a defendant allegedly violates his probation contract by engaging in criminal activity, a revocation hearing may not be held until after the defendant is tried on the new criminal charges. While that may be the sequence of events in most cases, we reject any suggestion that the revocation hearing may not be held first. The defendant’s probation might have been revoked even if he had been acquitted of the present armed robbery charge if the prosecution failed to establish guilt beyond a reasonable doubt but did show guilt by a preponderance of the evidence. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975). See also People v White, 98 Ill App 2d 1; 239 NE2d 854 (1968).

Defendant states that holding the revocation hearing first "creates 'unjustifiable tension’ between the defendant’s rights to due process and the right to be free from duress when he enters a plea”. He assumes that a person who has already been sentenced following a revocation of probation is more likely to accept a favorable plea bargain which does not impose additional punishment. We agree with that assumption, but it does not follow that this conviction must be reversed for that reason. All plea bargains involve some consideration passing from the prosecution to the defendant in order to induce the defendant to waive a full trial. Almost all defendants who enter guilty pleas do so because they expect to be treated more leniently if they plead guilty. If they had nothing to gain by pleading guilty and nothing to lose by going to trial, most of those defendants would choose the trial in the hope that they might somehow be acquitted. The fact that they would not plead guilty were it not for a promise or expectation of leniency does not render their pleas involuntary. People v Kindell, 17 Mich App 22; 168 NW2d 909 (1969), People v Guest, 47 Mich App 500; 209 NW2d 601 (1973). Defendant has raised a slightly different variation of the contention made by the defendants in the two cited cases and many others. It has always been rejected because acceptance would make plea bargaining impossible. The form of the argument is different here, but it still has no merit.

We also note that if the order of the proceedings had been reversed, the defendant might very well appeal the probation revocation, arguing that his will to resist the revocation had been overcome by the effects of his conviction and sentence on the substantive charge. One or the other must come first and we see no error in the decision to start with the probation revocation hearing.

Affirmed.

D. E. Holbrook, Jr., J.

(dissenting). Absent a rule preventing the use of a probationer’s revocation hearing testimony at the subsequent trial, I believe it is fundamentally unfair to hold the revocation hearing prior to the trial on the substantive offense when the sole basis for revoking probation is a finding that the probationer committed the substantive offense. Whether or not constitutionally mandated, such a rule is necessary to prevent a chill on a probationer’s exercise of his right to due process of law and his privilege against self-incrimination.

In general, a plea of guilty waives all non-jurisdictional defects. People v Alvin Johnson, 396 Mich 424, 440; 240 NW2d 729 (1976). Although defendant pled guilty to the substantive offense in the instant case, his guilty plea does not constitute a waiver of rights, "grounded in the due process clause”. Alvin Johnson, supra, at 444. A review of the plea taking transcript indicates defense counsel raised the issue of the impact of the prior probation revocation on the guilty plea and that counsel stated he intended to raise the issue on appeal. Because of the nature of the rights asserted, Alvin Johnson, supra, at 444, I conclude that defendant’s guilty plea has not waived his right to appellate review.

It is undisputed that although probation revocation is not a stage of criminal prosecution, a probationer is entitled to due process of law. Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656 (1973), People v Rial, 399 Mich 431, 435; 249 NW2d 114 (1976). According to the Michigan Supreme Court, a probationer is entitled to "more limited due process rights” than one accused of a crime, Rial, supra, at 435. I agree with Justice Levin’s concurring opinion in Rial that there is a need to promulgate rules and procedures defining what due process protections must be afforded at a revocation hearing.

The problem in the instant case arises because defendant’s probation was revoked on the basis of a finding that defendant committed a substantive offense before defendant was brought to trial on the substantive offense. A finding of probation violation need be proven by a "preponderance of the evidence”, People v Miller, 77 Mich App 381, 387; 258 NW2d 235 (1977), People v Billy Williams, 66 Mich App 67, 71; 238 NW2d 407 (1975), while at a trial on the substantive offense, guilt must be established beyond a reasonable doubt. By holding the revocation hearing first, the court can find defendant violated a criminal law by a preponderance of the evidence before defendant is afforded his constitutional right to a trial on the substantive offense and before he is found guilty of that offense.

Other states have adopted varied approaches to the propriety of holding a revocation hearing prior to the trial when the sole basis for revocation is commission of the substantive offense. In Georgia, Illinois, Pennsylvania and Texas a defendant has no right to delay a revocation hearing until the trial is held on the substantive offense. Dickerson v State, 136 Ga App 885; 222 SE2d 649 (1975), Jackson v State, 140 Ga App 659; 231 SE2d 554 (1976), People v Huff, 44 Ill App 3d 273; 357 NE2d 1380 (1976), People v Woodall, 44 Ill App 3d 1003; 358 NE2d 1267 (1976), Commonwealth v Kates, 452 Pa 102; 305 A2d 701 (1973), Bradshaw v State, 518 SW2d 548 (Tex Crim App, 1975). In Arizona the practice of delaying a revocation hearing until after trial is expressly disapproved. State v Jameson, 112 Ariz 315; 541 P2d 912 (1975), State v Astorga, 26 Ariz App 260; 547 P2d 1060 (1976).

In Justice Levin’s concurring opinion in Rial, supra, p 447, n. 14, he noted:

"The American Bar Association Standards Relating to Probation (Approved Draft 1970) provide:
"5.3 Proceedings following commission of another crime.
"A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge. However, upon a showing of probable cause that another crime has been committed by the probationer, the probation court should have discretionary authority to detain the probationer without bail pending a determination of the new criminal charge.”

In 1973, the National Advisory Commission on Criminal Justice Standards and Goals (Report on Corrections at 158-161) disapproved the practice of holding revocation hearings prior to trial on the substantive offense and concluded probation should not be revoked for the commission of a new crime unless the probationer has been tried and convicted of that crime. See People v Amaro, 79 Misc 2d 499; 358 NYS2d 900, 904 (1974). Despite the recommendations of these groups, I have been unable to locate any states which have adopted them.

Courts are split as to whether a subsequent acquittal or dismissal on the substantive offense requires a prior finding of probation violation be vacated. In Connecticut and North Carolina a subsequent acquittal requires vacation. State v Roberson, 165 Conn 73; 327 A2d 556 (1973), State v Guffey, 253 NC 43; 116 SE2d 148 (1960). In Illinois if a conviction which forms the basis of a probation revocation is overturned on appeal, the revocation order will be vacated. People v Hannah, 31 Ill App 3d 1087; 335 NE2d 84 (1975). In other states, however, courts have held a subsequent acquittal does not entitle a defendant to have the finding of probation revocation vacated. Russ v State, 313 So 2d 758 (Fla 1975), State v Fortier, 20 Or App 613; 533 P2d 187 (1975). In Arizona a subsequent dismissal of the substantive charges was held not to require vacation of the probation revocation. State v Jameson, supra.

As stated earlier, I believe the solution to the problem has been adopted by the California Supreme Court and the Rhode Island Supreme Court —to allow the prosecution the option of either postponing the revocation hearing until after trial or proceeding with a revocation hearing prior to trial but granting the probationer limited immunity as to testimony given in the earlier revocation hearing. People v Coleman, 13 Cal 3d 867; 120 Cal Rptr 384; 533 P2d 1024 (1975), State v DeLomba, 117 RI 673; 370 A2d 1273 (1977).

In Coleman the California Court found it unnecessary to rule on constitutional grounds since, "[w]hether or not it actually abridged defendant’s constitutional rights, the choice forced upon him at his revocation hearing was unnecessarily inconsistent with constitutional values”. 13 Cal 3d at 871-872; 533 P2d at 1030. A fundamental requisite of due process is the probationer’s constitutional right to be heard at the revocation hearing. Morrisey v Brewer, 408 US 471, 489; 92 S Ct 2593; 33 L Ed 2d 484 (1972), Gagnon v Scarpelli, supra, 411 US at 782, People v Martin, 61 Mich App 102, 107; 232 NW2d 191 (1975), Coleman, supra, 13 Cal 3d at 871-872; 533 P2d at 1030. When the revocation hearing precedes the trial, the probationer may be deterred from exercising his right to speak at the hearing because he or she runs the risk of self-incrimination. As the California Supreme Court reasoned:

"When a pending or potential criminal charge forms the basis of an alleged violation of a condition of probation, a probationer who can explain his actions only by jeopardizing his chances of acquittal at a subsequent criminal trial may understandably feel that his opportunity to be heard is more illusory than real and that he is being deprived of his liberty without one of the essential elements of rudimentary fairness—a meaningful chance to speak on his own behalf.”

Coleman, supra 13 Cal 3d at 874; 533 P2d at 1031. In a criminal proceeding, a defendant’s innocence is presumed and he or she must be proven guilty beyond a reasonable doubt. The heavy burden placed on the prosecution in a criminal trial may be substantially lightened if the prosecution is permitted to take advantage of defendant’s testimony at a prior revocation hearing. As Coleman points out, by holding the revocation hearing first, the prosecution is playing a "tails win we, heads you lose” game. If the probationer is deterred from testifying at the revocation hearing by fears of self-incrimination at the subsequent trial, the prosecution’s chances of obtaining a finding of violation are increased; if the probationer successfully fights revocation by testifying at the hearing, the prosecution’s chances of securing a conviction of the new offense are increased because, in effect, the probationer has been forced to be one of the prosecution’s chief witnesses at trial. Coleman, supra, 13 Cal 3d at 877; 533 P2d at 1033.

Although noting that the most desirable method would be to hold the trial before the revocation hearing, Coleman, supra, 13 Cal 3d at 896; 533 P2d at 1046, the California Court gave the prosecution an option by adopting the following rule:

"We accordingly declare as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer’s revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial court’s admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing.” Coleman, supra, 13 Cal 3d at 889; 533 P2d at 1042.

In 1977 the Rhode Island Supreme Court adopted the Coleman rule in the interest of the sound administration of justice. DeLomba, supra, 117 RI at 680-681; 370 A2d at 1277.

" * * * we hold that henceforth the state must either hold the violation hearing first and give the alleged violator use and derivative use immunity for any testimony he may give, or postpone the violation hearing until after the criminal trial. In our judgment, a practice so structured will be essentially fairer than our present procedure.” DeLomba, 117 RI at 678-679; 370 A2d at 1276.

While the Rhode Island Court has an "exclusionary” rule, the purpose and effect of both are the same.

Until a probationer/defendant is protected by such a rule, whether judicially or legislatively created, I believe it is fundamentally unfair to allow the revocation hearing to precede the trial. In the instant case, since no rule of immunity or exclusionary rule currently exists, I would vacate both the finding of probation violation and the guilty plea and remand to the lower courts. Defendant should be afforded his right to trial on the substantive offense before any further probation revocation proceedings.

       For a criticism of the ABA standard, see Rubera v Commonwealth, — Mass —; 355 NE2d 800, 805 (1976).


text:
    PEOPLE v VAN WYCK (ON REMAND)
    Docket No. 78-1378 (formerly 20435).
    Submitted June 2, 1976, at Grand Rapids.
    Decided May 25, 1978.
    Leave to appeal applied for.
    Robert B. Van Wyck was charged with first-degree murder and was convicted in Kent Circuit Court, Roman J. Snow, J., of second-degree murder. The jury was instructed on first-degree and second-degree murder, but the trial court refused defendant’s request for an instruction on manslaughter. Defendant appealed. The Court of Appeals in two prior decisions, People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), and People v Van Wyck (On Rehearing), 76 Mich App 17; 255 NW2d 754 (1977), reversed defendant’s conviction and remanded for further proceedings. The people appealed to the Supreme Court by leave granted and that Court remanded to the Court of Appeals for a determination of whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter, People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978). On remand, Held:

    The evidence adduced at trial was sufficient to support a jury verdict of guilty of the offense of manslaughter; therefore, refusal to give the requested manslaughter instruction was error.
    Reversed and remanded for entry of a judgment of conviction of manslaughter and for resentencing or for a new trial on the charge of second-degree murder, if the prosecutor so elects.
    1. Homicide—Manslaughter—Criminal Law—Lesser Included Offenses—Evidence—Guilty Verdict.
    Manslaughter is not a necessarily included offense within the crime of murder, but it may nonetheless be an included offense if the evidence adduced at trial would support a verdict of guilty of manslaughter.
    2. Homicide—Manslaughter—Criminal Law—Evidence—Instructions to Jury—Remand—Prosecutor’s Discretion—New Trial.
    A conviction of second-degree murder in a trial in which the trial court had refused to instruct the jury, upon request, on voluntary manslaughter should be reversed and the matter remanded to the trial court where the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter; on remand, the trial court should enter a judgment of conviction of manslaughter and resentence the defendant or, upon election of the prosecutor, vacate the judgment of conviction and grant a new trial on the charge of second-degree murder.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide § 7.

       40 Am Jur 2d, Homicide §§ 525, 529, 530.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harold S. Sawyer, Prosecuting Attorney, and Craig S. Neckers, Assistant Prosecuting Attorney, for the people.

      O’Toole, Stevens, Schuler, Johnson, Hipkiss, Piasecki & Knowlton, for defendant.
    Before: Danhof, C. J., and D. E. Holbrook and D. L. Munro, JJ.

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

   On Remand

Per Curiam.

In People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), the Supreme Court, holding that manslaughter was not a necessarily included lesser offense of murder, reversed our prior decision in People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), and People v Van Wyck (On Rehearing), 76 Mich App 17; 255 NW2d 754 (1977), and remanded the case for our determination of "whether the evidence adduced at trial would have been sufficient to support a jury verdict of guilty of the offense of manslaughter”.

The record contains slight but sufficient evidence to present a jury question. See Maher v People, 10 Mich 212, 221-224; 81 Am Dec 781 (1862), and People v Holmes, 111 Mich 364, 370; 69 NW 501 (1896).

While the record does not conclusively establish mitigating circumstances, it does not clearly establish a lack of passion unlike People v Younger, 380 Mich 678; 158 NW2d 493 (1968), and unlike People v Bryant, 70 Mich App 279, 285; 245 NW2d 716 (1976). We cannot say that "there is no evidence to find the existence of manslaughter”. The people’s case contained evidence from which a jury could have found provocation and the influence of passion even though such a finding would have been inconsistent with the apparent defense theory. See People v John Willie Williams, 26 Mich App 218, 221-225; 182 NW2d 347 (1970).

Because the evidence would have supported a conviction of manslaughter, we reverse the defendant’s conviction and remand to the trial court for entry of a judgment of conviction of manslaughter and resentencing. However, if the prosecuting attorney is persuaded, in his discretion, that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge of second-degree murder.

Reversed and remanded.

D. L. Munro, J., did not participate.


text:
    FIZER v ONEKAMA CONSOLIDATED SCHOOLS
    Docket No. 77-1696.
    Submitted March 13, 1978, at Lansing.
    Decided May 23, 1978.
    Leave to appeal applied for.
    Charles Fizer, Ann Fizer, and others brought an action against the Onekama Consolidated Schools and the Municipal Finance Commission of the State of Michigan to enjoin the school district from proceeding with the proposed sale of bonds for financing construction of school buildings. Issuance of such bonds had previously been disapproved in referendum elections on three separate occasions. The Municipal Finance Commission was dismissed, and summary judgment was granted by the Manistee Circuit Court, Charles A. Wickens, J., in favor of the plaintiffs, enjoining the sale of the bonds. The school district appeals by leave granted. The question on appeal is whether the issuance of school district bonds is always dependant upon prior voter approval. Held:

    Prior approval by the electorate is not required by the Michigan Constitution or by statute where a school district issues bonds which are in compliance with statutory requirements regarding debt limitations. The judgment in favor of the plaintiffs, enjoining the sale of the bonds, was erroneous, as the bond issue was within the district’s constitutional and statutory authority.
    Reversed.
    Constitutional Law—Schools and School Districts—Bond Issues —Approval by Electorate—Statutes.
    Corporate public units are granted express power under the Constitution to borrow money subject only to other pertinent constitutional provisions and legislative enactments; approved by the electorate is not required for a school district to issue bonds to finance construction where the total bonded indebtedness of the district does not exceed 5 percent of the state equalized valuation of all property located within the district (Const 1963, art 9, § 13, MCL 340.77a; MSA 15.3077[1], now MCL 380.144; MSA 15.4144).
    Reference for Points in Headnote
    64 Am Jur 2d, Public Securities and Obligations § 120.

      Donald G. Jennings, for plaintiffs.

      Thrun, Maatsch & Nordberg (by Patrick J. Berardo), for defendant Onekama Consolidated Schools.
    Amicus Curiae: Michigan Attorney General (by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone and Craig Atchinson, Assistants Attorney General).
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   Per Curiam.

Defendant Onekama Consolidated Schools appeals from a pretrial summary judgment granted to plaintiffs, enjoining defendant from issuing its bonds to finance the construction of an elementary school and the improvement of a high school. This litigation was initiated when the defendant decided to issue the bonds, notwithstanding an expression of voter disapproval given in three referendums.

Plaintiffs contend that Const 1963, art 9, § 6 prohibits the issuance of the bonds by defendant without prior approval of the voters where the 15 mill limitation will be exceeded to pay the principal and interest of the bonds. The record indicates, and defendant acknowledges, that ad valorem taxes in addition to the 15 mill limitation will be necessary to pay the bond obligations.

In response, defendant maintains that the second paragraph of that same constitutional provision refutes plaintiffs’ claim. Further, defendant argues that enabling legislation obviates the need for voter approval where the total bond indebtedness of the school district is less than or equal to five percent of the state equalized valuation of all property located within the district, citing MCL 340.77a; MSA 15.3077(1).

While Const 1963, art 9, § 6 provides ad valorem tax limitations and an exemption from those limits for the payment of bonds, it neither addresses nor prescribes criteria for the valid issuance of bonds. Its only relevant intent was to establish unlimited tax support for bond issues of local governmental units. See Convention Comment, 2 MCLA, p 547, Butcher v Township of Grosse Ile, 387 Mich 42, 58; 194 NW2d 845 (1972).

Corporate public units are granted express power under the Constitution to borrow money. Const 1963, art 9, § 13. That power is subject only to the other pertinent constitutional provisions and legislative enactment. Id.

More specifically addressed to the issuance of bonds by a school district is Const 1963, art 9, § 16. The third paragraph of that section provides:

"The term 'qualified bonds’ means general obligation bonds of school districts issued for capital expenditures, including refunding bonds, issued prior to May 4, 1955, or issued thereafter and qualified as provided by law pursuant to Section 27 or Section 28 of Article X of the Constitution of 1908 or pursuant to this section.” (Emphasis added.)

Its fifth and sixth paragraphs, respectively, state as follows:

"Subject to the foregoing provisions, the legislature shall have the power to prescribe and to limit the procedure, terms and conditions for the qualification of bonds, for obtaining and making state loans, and for the repayment of loans.”
"The power to tax for the payment of principal and interest on bonds hereafter issued which are the general obligations of any school district, including refunding bonds, and for repayment of any state loans made to school districts, shall be without limitation as to rate or amount.”

Pursuant to the foregoing constitutional authority, the Legislature enacted § 77a of the School Code of 1955. The record establishes that the bonds sought to be issued by defendant are in compliance with that enactment. Consequently, the bond issue was within the defendant’s constitutional and statutory authority, and defendant’s motion for summary judgment should have been granted.

We have profound appreciation and respect for the trial court’s concern that the will of the people, as expressed through their vote, be honored as the guiding force of our democratic society. However, our decision neither presages a demise of democracy nor constitutes an incursion upon the role of the people as the source of governmental power. It was a vote of the people that adopted our present Constitution, and it is that document that governs the resolution of the merits of this litigation.

Although plaintiffs’ resort to the judiciary is unavailing, other remedies may be pressed upon the Legislature. We retain confidence in that representative forum’s adherence to the principles of democracy.

Since we find the defendant’s proposed bond issue to be within its constitutional and statutory authority, we reverse the judgment of the trial court and dismiss the plaintiffs’ action.

Reversed. No costs, a public question being involved.

       The text of that provision pertinent to this controversy reads as follows:
      "Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, qualified under Section 6 of Article II of this constitution, voting on the question.”

        “The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidences of indebtedness or for the payment of assessments or contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount; or to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority or other authority, the tax limitations of which are provided by charter or by general law.”

        Id.

       This statute is § 77a of the School Code of 1955, 1955 PA 269, which was repealed and replaced by the School Code of 1976, 1976 PA 451, § 1851. A provision similar to § 77a is contained in the new code at § 144 and, as applied to the facts of this case, has an identical operative effect. See MCL 380.144; MSA 15.4144.

       MCL 340.77a; MSA 15.3077(1), which reads in pertinent part:
      "The board of a school district of the fourth class operating a K-12 program has the power and duty: * * *
      (b) To borrow, subject to the provisions of Act No. 202 of the Public Acts of 1943, as amended, such sums of money as it deems necessary to purchase sites for buildings, playgrounds, athletic fields or agricultural farms, and to purchase or erect and equip any building which it is authorized to purchase and erect, or to make any permanent improvement which it is authorized to make, and to accomplish this by the issue and sale of bonds of the school district in such form or on such terms as the board deems advisable, or by any other reasonable means. No loan shall be made and no bonds shall be issued for a longer term than 30 years nor for any sum which, together with the total outstanding bonded indebtedness of the district, shall exceed 5% of the state equalized valuation of the taxable property within the district, unless the proposition of making such loans or of issuing bonds has been submitted to a vote of the school tax electors of the district at a general or special school election and approved by the majority of the electors voting on the question. In such case loans may be made or bonds may be issued for the purposes hereinbefore set forth in an amount equal to that provided by Chapter 12 of part 2.”

       It should be noted that the Michigan Municipal Finance Commission was joined as a party defendant to these proceedings. That Commission has recognizable expertise regarding bond matters and the constitutional power of municipal units to issue bonds. That Commission has taken a position consistent with this opinion.


author: Per Curiam. T. M. Burns, P. J.,

text:
    SCHWARTZ v CITY OF DETROIT
    Docket No. 77-2516.
    Submitted January 16, 1978, at Detroit.
    Decided May 23, 1978.
    Leave to appeal applied for.
    Complaint by Louis Schwartz against the City of Detroit, Detroit General Hospital, for damages for medical malpractice in the performance of a tracheostomy. Accelerated judgment for defendant, based on governmental immunity, Wayne Circuit Court, Patrick J. Duggan, J. Plaintiff appeals. Held:

    Summary judgment is the appropriate way to raise the issue of governmental immunity. However, the grant of accelerated judgment was not reversible error where the plaintiff was not prejudiced. Activities of a municipal hospital are immune from liability in tort actions.
    Affirmed.
    T. M. Burns, P. J., dissented. He would hold that medical malpractice in the performance of a tracheostomy does not implicate governmental immunity.
    Opinion of the Court
    1. Torts—Governmental Immunity—Motions—Summary Judgment—Accelerated Judgment—Prejudice.
    A motion for summary judgment is the proper way to raise the issue of governmental immunity in a tort action, but raising the issue by a motion for accelerated judgment was not reversible error where a plaintiff was not prejudiced.
    2. Constitutional Law—Governmental Immunity—Statutes. Michigan’s governmental immunity statute is constitutional.
    3. Negligence—Governmental Immunity—Community-Owned Hospital—Governmental Functions.
    The operation of a community-owned hospital and the treatment of patients by such a hospital are governmental functions rendering a municipality immune from liability in negligence actions.

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 6.

       72 Am Jur 2d, States § 99.

       40 Am Jur 2d, Hospitals and Asylums § 22.
    Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital. 25 ALR2d 203.

      Dissent by T. M. Burns, P. J.
    4. Negligence—Governmental Immunity—Medical Malpractice.

      Claims of medical malpractice in the performance of a tracheostomy do not implicate a "governmental function" under the governmental immunity statute.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Sommers, Schwartz, Silver, Schwartz & Tyler, P. C. (by James S. Goulding), for defendant.
    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   Per Curiam.

The defendant herein secured accelerated judgment on plaintiff’s malpractice claim. Defendant’s motion was granted on grounds of governmental immunity. The appropriate order was entered and plaintiff appeals by right.

At the outset, we note that defendant’s motion for accelerated judgment on the grounds of governmental immunity should have been a motion for summary judgment. McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521 (1976), Butler v Wayne County Sheriff’s Dept, 75 Mich App 202, 203; 255 NW2d 7 (1977). However, the plaintiff was not prejudiced by the mislabeling of defendant’s motion as the motion averred that plaintiff had failed to state a claim upon which relief could be granted and because the defendant had governmental immunity.

Plaintiff’s initial challenge to the constitutionality of the governmental immunity statute has been rejected by this Court. See Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677; 256 NW2d 240 (1977), and cases discussed therein.

Plaintiff also contends that the operation of a community owned hospital is not a governmental function which is immune from tort liability. This precise question was recently decided against the plaintiff in White v Detroit, 74 Mich App 545; 254 NW2d 572 (1977).

"While other areas may require us to use our 'creative genius’ to resolve the issue of 'governmental function’, Thomas v Department of State Highways, [398 Mich 1, 11; 247 NW2d 530, 533 (1977)] an unbroken line of Michigan authority holds that operation of a community owned hospital is a governmental function. Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950), Nicholson v Detroit, 129 Mich 246; 88 NW 695 (1902), Knight v City of Tecumseh, [63 Mich App 215; 234 NW2d 457 (1975)], Lockaby v Wayne County, 63 Mich App 185, 190-191; 234 NW2d 444, 446 (1975), Snow v Freeman, [55 Mich App 84; 222 NW2d 43 (1974)]. We are compelled to agree that the treatment of plaintiff by Detroit General Hospital was a governmental function, rendering the City of Detroit immune from liability.” White, supra, at 548.

The trial court’s decision is affirmed. Costs to defendants.

T. M. Burns, P. J.,

(dissenting). The issues and briefs in this case are identical to those in Brown v Detroit, 83 Mich App 342; 268 NW2d 400 (1978), also heard by this panel. For the reasons stated in my dissent in Brown, I do not believe the claims of medical malpractice in performing a tracheostomy implicate a "governmental function” under the statute. The case should be remanded for trial.


author: Per Curiam. D. E. Holbrook, J.

text:
    FIFIELD v FIFIELD
    Docket No. 77-2833.
    Submitted March 7, 1978, at Grand Rapids.
    Decided May 23, 1978.
    Ruth Fifield commenced a divorce action against Wayne Fifield. In the judgment of divorce, plaintiff was awarded custody of their son. The defendant petitioned the circuit court for a change of custody. The petition was denied, Kent Circuit Court, George R. Cook, J. Defendant appeals. Held:

    The trial court’s decision was neither against the great weight of evidence nor an abuse of discretion.
    Affirmed.
    D. E. Holbrook, J., dissented. He would remand the matter to circuit court for an explication of the trial court’s decision because the trial court’s opinion indicates that the court did not evaluate and consider all of the necessary factors for determining the best interests of the child.
    Opinion of the Court
    1. Infants—Parent and Child—Child Custody—Discretion—Appeal and Error.
    The Court of Appeals will not change a trial court’s custody order, where, after reviewing the briefs and record, the Court is persuaded that the trial court’s decision was neither against the great weight of the evidence nor an abuse of discretion.
    Dissent by D. E. Holbrook, J.
    2. Infants—Child Custody Act—Best Interests of Child—Statutes—Factors—Obligation of Judge.

      The trial court in a child custody dispute has an obligation to consider, evaluate, and determine each of the factors which comprise the statutory definition in the Child Custody Act of the phrase "best interests of the child” (MCL 722.23; MSA 25.312[3]).

    References for Points in Headnotes

       42 Am Jur 2d, Infants §§ 43, 56.

       59 Am Jur 2d, Parent and Child §§ 331, 332.

       76 Am Jur 2d, Trial §§ 1250, 1258.

      3. Trial—Jury—Trial Without Jury—Specific Findings.

      A trial court in an action tried upon the facts without a jury is required to make specific findings of fact and state separately its conclusions of law thereon and direct the entry of the appropriate judgment (GCR 1963, 517.1).

    4. Infants—Child Custody—Best Interest of Child—Factors— Statutes—Individual Evaluation of Factors.

      The Court of Appeals, in a child custody case, should 'remand the matter to the trial court for explication of the trial court’s decision where the trial court’s opinion states that it gave careful consideration, as required by statute, to all of the factors which determine the best interests of the child, except to one factor, and the trial court did not evaluate and determine each of the factors individually (MCL 722.23; MSA 25.312[3]).

      James B. Johnson, for plaintiff.

      Edward J. Kehoe, Jr., for defendant.
    Before: M. F. Cavanagh, P. J., and D. E. Holbrook and Beasley, JJ.
   Per Curiam.

Defendant appeals from an order of the trial court denying his petition for change of custody of his minor son. We affirm.

Upon reviewing the briefs and record, we are persuaded that the trial court’s decision was neither against the great weight of the evidence nor an abuse of discretion. Westrate v Westrate, 50 Mich App 673; 213 NW2d 860 (1973), lv den, 391 Mich 812 (1974).

Costs to appellee.

D. E. Holbrook, J.

(dissenting). This writer believes that the majority opinion may prevail; however, this writer further believes that remand is necessary for the purpose of proper review.

Defendant appeals from the order of the trial court which denied his petition for change of custody of his son, Wayne Douglas Fifield, who was awarded to plaintiff following the parties’ divorce.

Under the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., in this situation, the trial court is required to determine the "best interests of the child” in awarding custody to the proper parent. In determining the best interests of the child the act lists ten factors, which are to be considered, evaluated and determined by the court. MCL 722.23; MSA 25.312(3). Burghdoff v Burghdoff, 66 Mich App 608; 239 NW2d 679 (1976).

GCR 1963, 517.1 requires the trial court to make specific findings of fact and state separately its conclusions of law thereon and direct the entry of the appropriate judgment when an action is tried upon the facts without a jury. See Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975).

While the trial court’s opinion states that it gave careful consideration to all the factors which determine the best interests of the child, except factor (h), the court did not evaluate and determine each of the factors individually.

This writer, therefore, would remand for explication of the trial court’s decision. Ray v Mason County Drain Comm’r, 393 Mich 294; 224 NW2d 883 (1975).


text:
    DOLSON v SECRETARY OF STATE
    Docket No. 77-4450.
    Submitted May 2, 1978, at Lansing.
    Decided May 23, 1978.
    Robert J. Dolson, plaintiff, was injured in an accident on March 5, 1976, while driving a vehicle for his employer whose no-fault accident insurance had been cancelled five days earlier. Plaintiff did not have any no-fault insurance coverage because neither he nor anyone in his household owned a car. On April 22, 1977, plaintiff claimed entitlement to insurance benefits from the assigned claims facility. The claim was denied because more than one year had elapsed between the accident and the time the claim was filed. Plaintiff filed an action in the Jackson Circuit Court against the assigned claims facility of the Secretary of State. The court, Russell E. Noble, J., granted defendant’s motion for accelerated judgment. Plaintiff appeals. Held:

    The one-year notice requirement for claims under the assigned claims provisions of the no-fault insurance act exists to insure that claims be settled while the evidence is fresh and to contribute to the general objective of the act, i.e., to provide prompt monetary relief for vehicular accident losses at the lowest cost to the system and the individual; such a requirement is not violative of due process or equal protection guarantees.
    Affirmed.
    D. E. Holbrook, J., concurs. He suggests that the Legislature require insurance companies to notify the Secretary of State 30 days prior to cancellation of no-fault insurance policies and provide for the Secretary of State to notify the owner of the vehicle to show proof of insurance within 10 days and to seize the vehicle’s license plate upon failure to show such proof. Such a procedure would prevent uninsured vehicles from being on the road and would also prevent unsuspecting drivers or passengers from using a vehicle which is uninsured.
    References for Points in Headnotes

       16 Am Jur 2d, Constitutional Law §§ 542, 545, 550.

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

       New Topic Service, Am Jur 2d, No-Fault Insurance §§ 12, 13.

       New Topic Service, Am Jur 2d, No-Fault Insurance § 3.

      Opinion op the Court
    1. Constitutional Law—Statutes—Due Process.
    A law is not violative of the requirement of due process when it is not unreasonable, arbitrary or capricious, and when the means selected have a real and substantial relation to the object sought to be attained (US Const, Am XIV, Const 1963, art 1, §17).
    2. Automobiles—Statutes—Insurance—No-Fault Insurance—Objective of No-Fault Insurance.
    The general objective of the no-fault insurance act is to provide prompt monetary relief for losses suffered in vehicular accidents, and this should be done at the lowest cost to the system and the individual (MCL 500.3101 et seq.; MSA 24.13101 et seq.).

    3. Automobiles—Insurance—Statutes—No-Fault Insurance—Limitation of Actions.
    The objective of the one-year time limitation for assigned claims contained in the no-fault insurance act is to insure that claims will be settled while the evidence is fresh and the provision contributes to the lowest cost general objective of the act and is, therefore, not violative of the requirement of due process (MCL 500.3174; MSA 24.13174).
    4. Constitutional Law—Equal Protection—Legislative Classifications—Automobiles—Insurance—Statutes—No-Fault Insurance Act.
    A legislative classification, in order not to violate the equal protection guarantee of the constitution, must be germane to the object of the legislation and must be made uniform in its operation upon all persons of the class to which it naturally applies; the one-year notice requirement for assigned claims in the no-fault statute bears a reasonable relationship to the legislative objective, and operates uniformly on all within the class and is, therefore, not violative of the equal protection requirement (US Const, Am XIV, Const 1963, art 1, § 2, MCL 500.3174; MSA 24.13174).
    Concurrence by D. E. Holbrook, J.
    5. Insurance—Automobiles—No-Fault Insurance—Cancellation —Notice to Secretary of State.

      The Legislature should require insurance companies to notify the Secretary of State 30 days prior to cancellation of a no-fault insurance policy and should permit the Secretary of State to require the owner of the vehicle to produce proof of insurance or suffer loss of his vehicle license plates; such a procedure

      would prevent uninsured vehicles from being on the road and would prevent drivers and passengers from knowingly or unknowingly using an uninsured vehicle.

      Rosenburg, Stanton, Bullen & Nelson, P. C. (by Gary W. Britten), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Joseph B. Bilitzke and Warren R. Snyder, Assistants Attorney General, for defendant.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff was injured March 5, 1976, while driving a vehicle for GTL Communications, Inc., his employer. GTL’s no-fault accident insurance had been cancelled five days earlier. Neither plaintiff nor anyone in his household owned a vehicle. Consequently, plaintiff did not have any no-fault insurance coverage.

On April 22, 1977, plaintiff claimed entitlement to insurance benefits from the Assigned Claims Facility, pursuant to MCL 500.3171 et seq.; MSA 24.13171 et seq. The claim was denied because more than one year had elapsed between the accident and the time the claim was filed. MCL 500.3174; MSA 24.13174. Defendant’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5) was granted on this ground and plaintiff appeals.

Plaintiff first argues that the one-year, limitation denies him due process of law. US Const, Am XIV; Const 1963, art 1, § 17. The classic test used to determine if a statute violates due process is found in Nebbia v New York, 291 US 502, 525; 54 S Ct 505; 78 L Ed 940 (1934), McAvoy v H B Sherman Co, 401 Mich 419, 435-436; 258 NW2d 414 (1977):

"The Fifth Amendment, in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts.”

To determine if the statute is "unreasonable, arbitrary or capricious” and if it bears a "real and substantial relation to the objects sought to be attained”, an appellate court must examine the general objective of the no-fault act and the specific objective of the one-year limitation. McAvoy, supra, at 436.

The general objective of the no-fault insurance act is to provide prompt monetary relief for losses suffered in vehicular accidents. O’Donnell v State Farm Mutual Automobile Ins Co, 70 Mich App 487, 495; 245 NW2d 801 (1976), lv gtd, 397 Mich 848 (1976). This should be done "at the lowest cost to the system and the individual”. Shavers v Attorney General, 65 Mich App 355, 370; 237 NW2d 325 (1975).

We conclude that the time limitation for recovery of personal protection insurance benefits, embodied in MCL 500.3174; MSA 24.13174, exists for administrative convenience. Its specific objective is to insure that claims be settled while the evidence remains fresh. This would contribute to the "lowest cost” objective enunciated in Shavers, supra, at 370.

Given the underlying rationale of the no-fault act, it cannot be said that the notice limitation contained in MCL 500.3174; MSA 24.13174 denies plaintiff his due process right.

Plaintiff also contends that the one-year limitation denies him equal protection of the law under US Const, Am XIV; Const 1963, art 1, § 2. Plaintiff raises a unique equal protection argument. MCL 500.3174; MSA 24.13174 puts the same time limitation on all injured parties, regardless of their circumstances. In essence, plaintiff believes he is denied equal protection of the law because he has not been treated differently.

The legislative classification in the case at bar does not violate equal protection. "Generally, legislative classification should be presumed valid”. O’Donnell, supra, at 494. A legislative classification " * * * must be germane to the object of the legislation, and it must be made uniform in its operation upon all persons of the class to which it naturally applies.” O’Donnell, supra, at 494.

Therefore, MCL 500.3174; MSA 24.13174 has a presumption of validity. Its reasonable relationship to a legitimate public interest has already been discussed. Finally, there is no question that the notice limitation is uniform for all affected persons.

It becomes plaintiff’s burden to show that the challenged law is arbitrary. McAvoy, supra, at 453. This he has not done.

Affirmed. Costs to appellee.

D. E. Holbrook, J.

(concurring). This writer concurs in an effort to correct a serious situation now present in our no-fault insurance laws. This is one of many cases to come before this Court where an individual has been injured in an accident involving a vehicle without mandatory no-fault insurance. The situation of vehicles being driven in Michigan without insurance is "all too prevalent”. Victims of drivers of automobiles without mandatory insurance as required by our law are crying out for help and relief.

In the instant case, plaintiff was a 22-year-old man, employed by GTL Communications. On March 5, 1976, he was injured in an accident when the brakes on his employer’s 2-1/2-ton digger truck he was driving failed, causing the truck to leave the road and throw plaintiff from the cab. As of the date of the accident, neither the plaintiff nor anyone in his household owned a motor vehicle. Between March 5, 1976, and March 5, 1977, GTL Communications went out of business. Plaintiff had a very difficult time trying to find out who was GTL’s insurance company. Eventually plaintiff found out, only to find that the insurance had been cancelled five days prior to his accident.

In this state, a person receives a yearly license plate or tab upon evidence of proper no-fault insurance. In such instances, this evidences that the vehicle and owner has coverage. However, for any number of reasons this coverage may be cancelled during the period that the license plate is valid. Unfortunately, the vehicle is still driven by people intentionally violating the insurance laws and by people who do not know that the vehicle is uninsured. Also, persons are injured and killed by such uninsured vehicles, owners and drivers.

This writer suggests that a way to cut down on the number of vehicles being used without insurance is to provide a way to take their license plates. This can be done by requiring the insurance companies to notify the Secretary of State’s office 30 days in advance when a vehicle’s insuranee is to be cancelled or terminated. The Secretary of State would then notify the owner of the vehicle to show proof of insurance coverage within ten days and, upon failure to so show, then to seize the vehicle’s license plate. The cost of this service could be required to be paid for by the delinquent vehicle owner. This would prevent uninsured vehicles from being on the road and also prevent unsuspecting drivers or passengers from using a vehicle which is uninsured.

If such a plan had been in effect, the instant case would have been prevented.

This writer reluctantly concurs with the opinion of my brothers for the reason that the law as presently written affords no relief under the facts of this case.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v TAYLOR
    Docket No. 77-4997.
    Submitted May 2, 1978, at Lansing.
    Decided May 23, 1978.
    Leave to appeal applied for.
    Ursula Taylor was killed while a passenger in her own car which was being driven, with her consent, by Rick Kirgis, when the car left the road and struck a tree. Mrs. Taylor was insured by State Farm Mutual Automobile Insurance Company. Mr. Kirgis was covered by a policy issued to his father by Home Mutual Insurance Company. Tyrone Taylor, as the special administrator of the estate of Ursula Taylor, deceased, commenced an action against, inter alia, Rick Kirgis. Rick Kirgis demanded that State Farm defend him in this action because Mrs. Taylor’s policy extended coverage to permissive users of her vehicle. State Farm then commenced an action for declaratory judgment against Mr. Taylor, as administrator of his deceased wife’s estate, Rick Kirgis, Reginald Kirgis and Home Mutual Insurance Company claiming that State Farm had no duty to defend or insure Rick Kirgis because of an exclusion in the policy issued to Mrs. Taylor. Summary judgment for plaintiff, Ingham Circuit Court, Michael G. Harrison, J. Defendant Home Mutual Insurance Company appeals. Held:

    State Farm is under a duty to defend because the exclusionary clause under which they sought to avoid this duty is invalid.
    Reversed.
    Automobiles—Insurance—Exclusionary Clauses—Duty to Defend —Named Insured.
    An exclusionary clause in an automobile insurance policy which provides that the insurance does not apply under the residual liability insurance coverage "to bodily injury to any insured or any member of the family of any insured residing in the same household as the insured” is invalid and an insurer may not rely on that exclusion to avoid a duty to defend a defendant, who was driving a vehicle owned by a named insured under the policy, with the owner’s permission, and thereby came within the policy’s definition of "insured”, in a lawsuit started by the vehicle’s owner who was injured as a passenger in the vehicle driven by the defendant.

      References for Points in Headnote
    7 Am Jur 2d, Automobile Insurance § 131.
    Validity, construction and application of provisions of automobile liability policy excluding from coverage injury or death of member of family or household of insured. 46 ALR3d 1024.

      Willingham, Coté, Hanslovsky, Griffith & Foresman, P. C., for plaintiff.

      Mainolfi, McGraw & Borchard, for defendant Home Mutual Insurance Company.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   Per Curiam.

Defendant appeals from a summary judgment granted to plaintiff in a declaratory judgment action. On October 9, 1974, Mrs. Taylor was killed while a passenger in her own car which was being driven by Rick Kirgis when the car left the road and struck a tree. At the time of the accident, Mrs. Taylor had in effect an insurance policy issued to her by plaintiff. Because Rick Kirgis resided with his father at the time of the accident, he was covered under his father’s policy issued by Home Mutual Insurance Company.

Decedent’s husband was appointed special administrator of her estate, and he commenced suit in Bay County Circuit Court on May 12, 1975, seeking relief against, inter alia, Rick Kirgis. Because Mrs. Taylor’s insurance policy extended coverage to permissive users of her vehicle, Mr. Kirgis demanded that plaintiff defend him in that action.

Plaintiff then filed a complaint for a declaratory judgment claiming that it had no duty to defend or insure Mr. Kirgis because of an exclusion in the policy issued to Mrs. Taylor which provided:

"Exclusions—Section 1
"This insurance does not apply under:
"(h) Coverage A [residual liability insurance], to bodily injury to any insured or any member of the family of any insured residing in the same household as the insured.

The policy defined insured as follows:

"Insured—The unqualified word 'insured’ includes * * * (4) any other person while using the owned motor vehicle, PROVIDED THE OPERATION AND THE ACTUAL USE OF SUCH VEHICLE ARE WITH THE PERMISSION OF THE NAMED INSURED OR SUCH SPOUSE AND ARE WITHIN THE SCOPE OF SUCH PERMISSION.”

Defendants answered the complaint, and plaintiff then filed a motion for summary judgment under GCR 1963, 117.2(3), claiming that there were no material issues of fact, but only questions of law. Briefs were filed, and following oral argument and supplemental briefs, the court entered an opinion granting the motion for summary judgment.

We adopt Judge (now Justice) Levin’s dissenting opinion in Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513, 524; 194 NW2d 193 (1971), as well as the well-written opinion in Allstate Insurance Co v Defrain, 81 Mich App 503; 265 NW2d 392 (1978), and, on the basis of those two cases, we reverse and hold that plaintiff is under a duty to defend.

Costs to appellant.