author: Cynar, P. J. D. C. Riley, J.

text:
    STORIE v SOUTHFIELD LEASING, INC
    Docket No. 77-3955.
    Submitted February 13, 1979, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Charles E. Storie was a passenger in a small-engine airplane piloted by Milton Lebow, president of Lebow Associates, Inc., of Troy, Michigan. The plane crashed near Akron, Ohio, killing both Storie and Lebow. Mr. Storie was a sales manager for Lebow Associates and a resident of Oakland County. The trip was to service business accounts in the Cleveland-Akron area. The aircraft was owned and registered by Southfield Leasing, Inc., and was being used by Lebow Associates under a lease agreement. Jareta D. Storie, administratrix of the estate of Charles E. Storie, brought a wrongful death action against Southfield Leasing. Southfield Leasing filed a third-party complaint against Lebow Associates pursuant to an indemnity provision in the aircraft lease. Plaintiff stipulated that the only claim against defendant Southfield Leasing was under the Michigan aircraft ownership liability statute. Southfield Leasing moved for summary judgment alleging that Federal legislation preempted the area of a lessor’s liability for airplane collisions, thus rendering the Michigan statute inapplicable. Lebow Associates, third-party defendant, contended that summary judgment was proper according to the doctrine of lex loci delicti which required application of Ohio law. Oakland Circuit Court, William J. Beer, J., granted defendant’s motion on the court’s interpretation of the lex loci delicti rule. Plaintiff appeals and argues that the doctrine of lex loci delicti has no application. Southfield Leasing has cross-appealed contending that the trial court erred in refusing to grant the motion for summary judgment on the ground of Federal preemption. Lebow Associates is not a party to this appeal. Held:

      References for Points in Headnotes

       8 Am Jur 2d, Aviation §§ 70, 73 et seq.

       8 Am Jur 2d, Aviation § 65.
    What is place of Tort causing personal injury or resultant damage or death, for purpose of principle of conflict of laws that law of place of tort governs. 77 ALR2d 1266.

       73 Am Jur 2d, Statutes § 46.

       16 Am Jur 2d, Conflict of Laws § 11.

       8 Am Jur 2d, Aviation § 64 et seq.

       16 Am Jur 2d, Conflict of Laws § 8.

       8 Am Jur 2d, Aviation §§ 64, 65.

       8 Am Jur 2d, Aviation § 72.

       8 Am Jur 2d, Aviation § 70 et seq.

    Statute imposing strict liability on aircraft owner as affecting liability under Federal Tort Claims Act. 74 ALR2d 867.

       16 Am Jur 2d, Conflict of Laws §§ 6, 9.

       20 Am Jur 2d,Courts § 15.

      1. The Michigan Supreme Court has adopted a rule which holds that foreign law will not be recognized if contrary to the public policy of the forum. Where the public policy of Michigan, to encourage increased supervision over the maintenance of aircraft, is embodied in a state statute and that public policy would be thwarted if a case were tried in Ohio which has no similar statutory provision or common-law doctrine, the lex loci delicti rule should not be applied. The wrongful death action started in Michigan should be tried in Michigan.
    2. The Federal aircraft security statute does not prevent states from imposing liability upon owners of airplanes where an injury occurred inside an aircraft and not on the surface of the earth. The Michigan statute, as written, imposes liability upon aircraft owners both for injuries incurred on the ground and those suffered inside the airplane. Liability under the state statute for the former must yield and is unenforceable because of a conflict between state and Federal law; however, liability may be imposed under the state statute for the latter type of injury, which may be severed from the statute without doing injustice to the legislative intent.
    Reversed and remanded.
    D. C. Riley, J., dissented. She would hold that aircraft litigation should not be excepted from the lex loci delicti doctrine. The Supreme Court has held that a Michigan statute which permits a cause of action which is nonexistent in a foreign jurisdiction is insufficient to raise the issue of contravention of the foreign state’s public policy. This decision is well advised, because to hold otherwise would mean, in large part, the eventual engulfment of the lex loci delicti doctrine by the public policy exception, for whenever foreign law would prohibit a cause of action sanctioned by our state, public policy would automatically dictate application of Michigan law, and thus unduly frustrate the intent of the lex loci delicti principle as a problem solving choice of law rule.

      Opinion of the Court
    1. Aviation — Torts — Maintenance of Aircraft — Negligence — Operation of Aircraft — Ordinary Care — Common Law — Statutes.
    The owner or operator or the person or organization responsible for the maintenance or use of an aircraft shall be liable for any injury occasioned by the negligent operation of the aircraft, whether the negligence consists of a violation of the provisions of the statutes of the state, or in failure to observe ordinary care in the operation, as the rules of the common law require (MCL 259.180a[l]; MSA 10.280[1]).
    2. Torts — Conflict of Law — Lex Loci Delicti — Public Policy.
    The doctrine of lex loci delicti has been traditionally followed by Michigan courts in choice of law cases; the rule states that, in tort actions, the law governing the litigation is the law of the state where the tort occurred; however, there is a seldom applied exception which states that foreign law will not be recognized if contrary to the public policy of the forum.
    3. Statutes — Public Policy — Legislature — Court Decisions — Constitutional Law.
    The public policy of a state is fixed by its constitution, its statutory law, and the decisions of its courts; and when the Legislature enacts a law within the limits of the constitution, the enactment insofar as it bears upon the matter of public policy is conclusive.
    4. Torts — Conflict of Law — Lex Loci Delicti — Public Policy — Aviation — Lessees and Lessors — Wrongful Death.
    The public policy of Michigan takes precedence over the doctrine of lex loci delicti in resolving a choice of law question where all the principals involved in an Ohio airplane crash were Michigan residents, the lessor and lessee of the aircraft are Michigan residents and a decedent, whose death prompted a wrongful death action in Michigan, was also a resident of this state.
    5. Aviation — Torts — Owner Liability Statute — Safety of Airplanes — Negligence — Common Law Rules — Conflict of Law — Statutes.
    The purpose of the statute imposing owner liability for the negligent operation of aircraft is to increase the safety of airplanes flown within the state; to effectuate this intention and to encourage increased supervision over the maintenance of aircraft, the Legislature chose to deviate from the common-law rule which imposes no such liability; therefore, to permit owners of airplanes to escape liability on the basis of the mere fortuity that injury did not occur within the boundaries of this state would undermine the purpose and intended effect of the statute (MCL 259.1, 259.180a[l]; MSA 10.101, 10.280[1]).
    6. Statutes — States — Federal Preemption — Express — Implied.
    Federal preemption of state statutes may occur where the intent to preempt is expressly manifested by the statutory language of the Federal enactment; the intent to preempt may also be implied where the Federal regulatory scheme is so pervasive, the Federal interest so dominant, or the need for uniformity so great that state regulation of the subject matter would create an obstacle to the accomplishment of the objective of the Federal government.
    7. Statutes — States — Conflicts With Federal Law. A state law must yield when it is in direct conflict with Federal law.
    8. Aviation — States — Statutes — Federal Preemption — Torts — Owner Liability Statute — Negligence.
    Generally, the regulatory scheme relating to aviation may be sufflciently pervasive as to require preemption of state statutes in many areas of aviation law; however, this is not true in the area of owner liability for the negligent use of airplanes where the area of tort liability has, for the most part, been left to the states.
    9. Aviation — Torts — Federal Security Statute — Applicability — Statutes.
    The Federal aircraft security statute shields the lessor of an airplane from tort liability for any injury or loss suffered on the surface of the earth; however, the statute is inapplicable where an injury occurred inside an aircraft and not on the surface of the earth (49 USC 1404; MCL 259.180a[l]; MSA 10.280[1]).
    10. Aviation — Torts — Owner Liability Statute —■ Federal Preemption — State Statutes — Construction — Severability.
    The state statute which imposes owner liability for the negligent operation of aircraft is not entirely preempted by Federal legislation; as written, the statute imposes liability upon aircraft owners both for injuries incurred on the ground and those suffered inside an airplane, and, although liability for the former must yield and is unenforceable because of a conflict between state and Federal law, liability may be imposed under the state statute for the latter type of injury which may be severed from the statute without doing injustice to the legislative intent (49 USC 1404; MCL 259.180a[l]; MSA 10.280[1]).
    Dissent by Riley, J.
    11. Aviation — Torts — Conflict of Law — Lex Loci Delicti — Forum Shopping — Automobile Mishaps.

      Aircraft litigation should not be excepted from the lex loci delicti doctrine; the underlying policy of the doctrine and Us justification is to provide for certainty and eliminate forum shopping which is equally relevant not only to automobile and airplane mishaps, but other tort situations as well.

    12. Torts — Statutes — Conflict of Law — Lex Loci Delicti — Jurisdiction — Public Policy.

      The fact that a Michigan statute permits a cause of action which is not available in a foreign jurisdiction has been held insufficient by the Supreme Court to raise the issue of contravention of the forum state’s public policy.

    13. Courts — Court of Appeals — Supreme Court — Supreme Court Principles — Duty to Apply.

      The Court of Appeals is duty bound to apply principles promulgated by the Supreme Court unless convinced that it would rule differently today.

      Richard F. Schaden, P.C. (by Victoria C. Field-man), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pederson (by John P. Jacobs), for defendant.
    Before: Cynar, P.J., and D. E. Holbrook, Jr. and D. C. Riley, JJ.
   Cynar, P. J.

In pertinent part, the undisputed facts in this case are as follows:

On January 17, 1974, plaintiffs decedent, Charles E. Storie, was a passenger in a small-engine airplane, piloted by Milton Lebow, when that plane crashed near Akron, Ohio, killing both occupants.

Lebow was the president of Lebow Associates, Inc., a Michigan corporation with its principal place of business in Troy. The purpose of the flight was to service accounts for Lebow Associates in the Cleveland-Akron area. Decedent was employed by the company as a sales manager at the time of his death and resided in Oakland County, Michigan.

The aircraft in question was owned and registered at the time of the crash by defendant South-field Leasing, Inc. (hereinafter referred to as defendant), which had leased the plane to Lebow Associates for Lebow’s use pursuant to a lease agreement on May 26, 1969.

On September 6, 1974, plaintiff filed a wrongful death action in Wayne County against defendant, which in turn instituted a third-party complaint against Lebow Associates pursuant to an indemnity provision of the aircraft lease. Following a transfer of venue to Oakland County, plaintiff stipulated that its only claim against defendant was under the Michigan aircraft ownership liability statute. MCL 259.180a(l); MSA 10.280(1).

Thereafter, defendant moved for summary judgment alleging that Federal legislation, specifically 49 USC 1404, preempted the area of a lessor’s liability for airplane collisions, thus rendering the Michigan statute inapplicable.

Third-party defendant, Lebow Associates, Inc., filed a brief in support of defendant’s motion urging that summary judgment was also proper for a second reason, that the doctrine of lex loci delicti required the application of Ohio law, under which the present action could not be maintained.

On September 15, 1977, the lower court granted defendant’s motion for summary judgment on this latter ground.

Plaintiff now appeals as of right and argues that the doctrine of lex loci delicti had no application in the case at bar. Defendant has cross-appealed and argues that the lower court erred in refusing to grant the motion for summary judgment on the ground of Federal preemption.

Third-party defendant, Lebow Associates, is not a party to this appeal.

MCL 259.180a(l); MSA 10.280(1) provides as follows:

"The owner or operator or the person or organization responsible for the maintenance or use of an aircraft shall be liable for any injury occasioned by the negligent operation of the aircraft, whether the negligence consists of a violation of the provisions of the statutes of the state, or in the failure to observe ordinary care in the operation, as the rules of the common law require.”

The parties agree that Ohio lacks a similar statute, and, as it is not otherwise alleged by plaintiff, apparently further agree that Ohio common law would disallow such an action.

In choice of law cases, Michigan has traditionally followed the doctrine of lex loci delicti, which states that, in tort actions, the law governing the litigation is the law of the state where the tort occurred. Kaiser v North, 292 Mich 49; 289 NW 325 (1939). However, in Sweeney v Sweeney, 402 Mich 234, 240; 262 NW2d 625 (1978), the Court gave new life to a seldom applied exception to the rule of lex loci delicti, stating that "the foreign law will not be recognized if contrary to the public policy of the forum”. Therefore, the choice of law question posed by this case turns on whether applying Ohio law would violate the public policy of the State of Michigan.

We believe this issue is controlled by the Court’s opinion in Branyan v Alpena Flying Service, Inc, 65 Mich App 1; 236 NW2d 739 (1975). In that case, the Court applied Michigan law to an action arising out of an airplane crash which occurred in Virginia. After noting that all the principals involved were residents of this state, the Court concluded that a Michigan statute providing for full recovery of damages should be applied, rather than a limitation on the amount of damages contained in a Virginia statute. In concluding that the Michigan statute embodied a public policy of the state, which would be violated by applying Virginia law, the Court stated:

"The public policy of a state is fixed by its constitution, its statutory law, and the decisions of its courts; and when the Legislature enacts a law within the limits of the constitution, the enactment insofar as it bears upon the matter of public policy is conclusive.” Branyan, supra, at 8.

We conclude that Branyan, supra, should be followed in the present case. As in Branyan, all the principals involved were Michigan residents. Both the lessor and lessee of the plane are Michigan corporations and the decedent was also a resident of this state. In this case, unlike Branyan, supra, the choice of law question does not merely determine the maximum recoverable amount. It is determinative of whether plaintiff can recover at all. If the statute considered in Branyan, supra, which bears only upon the extent of recovery involves a public policy capable of overcoming the general rule of lex loci delicti, then the statute involved in the present case certainly expresses a similar policy.

Our conclusion to apply Michigan law is further buttressed by examining the apparent legislative purpose behind MCL 259.180a(l); MSA 10.280(1). The statute appears to be directed toward increasing the safety of aircraft flown within the state. This is evidenced by language in the same act, stating:

"It is hereby declared that the purpose of this act is to further the public interest and aeronautical progress by providing for the protection and promotion of safety in aeronautics * * *.” MCL 259.1; MSA 10.101.

To effectuate this purpose the Legislature chose to deviate from the common-law rule, see, Note: Lohr, Recent Decisions, 57 Mich L Rev 111 (1958), and impose liability upon the owner of an aircraft. No doubt, this was intended to encourage increased supervision over the maintenance of aircraft. We believe this purpose would be undermined by permitting owners of airplanes to escape liability on the basis of the mere fortuity that the injury did not occur within the boundaries of this state.

Having determined that the lex loci delicti rule should not be applied in this case, it is necessary to consider the argument raised in defendant’s cross-appeal. Defendant contends that MCL 259.180a(l); MSA 10.280(1) deals with an area of law that has been preempted by Federal legislation. Defendant also points to 49 USC 1404 which provides:

"No person having a security interest in, or security title to, any civil aircraft, aircraft engine, or propeller under a contract of conditional sale, equipment trust, chattel or corporate mortgage, or other instrument of similar nature, and no lessor of any such aircraft, aircraft engine, or propeller under a bona fide lease of thirty days or more, shall be liable by reason of such interest or title, or by reason of his interest as lessor or owner of the aircraft, aircraft engine, or propeller so leased, for any injury to or death of persons, or damage to or loss of property, on the surface of the earth (whether on land or water) caused by such aircraft, aircraft engine, or propeller, or by the ascent, descent, or flight of such aircraft, aircraft engine, or propeller or by the dropping or falling of an object therefrom, unless such aircraft, aircraft engine, or propeller is in the actual possession or control of such person at the time of such injury, death, damage, or loss.”

Defendant claims that the provisions of the Federal statute are in direct conflict with the language of the Michigan statute and that the latter is therefore preempted.

In ruling upon defendant’s motion for summary judgment, the trial judge concluded that no preemption has occurred. We agree with the trial judge’s conclusion that MCL 259.180a(l); MSA 10.280(1), as applied in this case, is not preempted by Federal legislation.

Federal preemption may occur in a number of contexts. The intent to preempt may be expressly manifested by the statutory language. Bethlehem Steel Co v New York State Labor Relations Board, 330 US 767, 771-772; 67 S Ct 1026; 91 L Ed 1234 (1947). The intent to preempt has also been implied where the Federal regulatory scheme is so pervasive, the Federal interest so dominant, or the need for uniformity so great that state regulation of the subject matter would create an obstacle to the accomplishment of the objective of the Federal government. Rice v Santa Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947), Marshall v Consumers Power Co, 65 Mich App 237, 245; 237 NW2d 266 (1975). State law must also yield when in direct conflict with Federal law. Sperry v State of Florida ex rel Florida Bar, 373 US 379, 384; 83 S Ct 1322; 10 L Ed 2d 428 (1963).

In the present case the Federal statute includes no express intention to preempt the field of owner liability for the negligent use of airplanes. To the contrary 49 USC 1506 provides that:

"Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”

This provision has been interpreted as applying to state remedies as well as remedies arising under Federal law. Porter v Southeastern Aviation, Inc, 191 F Supp 42, 43 (MD Tenn, 1961).

Nor is an intention to preempt properly implied. There is no pressing need for uniformity in the area; nor is the Federal interest in this topic so dominant as to preclude state regulation. Although the regulatory scheme relating to aviation generally may be sufficiently pervasive as to require preemption of state statutes in other areas of aviation law, see Burbank v Lockheed Air Terminal, 411 US 624; 93 S Ct 1854; 36 L Ed 2d 547 (1973), this is not true in the area of owner liability for the negligent use of airplanes. Rather, the area of tort liability has generally been left to the states. Rogers v Ray Gardner Flying Service, Inc, 435 F2d 1389, 1394 (CA 5, 1970).

We do conclude that MCL 259.180a(l); MSA 10.280(1) does, in part, conflict with the provisions of 49 USC 1404. The latter statute shields a lessor of an airplane from tort liability for any injury or loss suffered "on the surface of the earth”. See Rogers v Ray Gardner Flying Service, Inc, supra, and McCord v Dixie Aviation Corp, 450 F2d 1129, 1130 (CA 10, 1971). To the extent that MCL 259.180a(l); MSA 10.280(1) would impose liability for such an injury or loss upon the lessor of the airplane, the statute directly conflicts with Federal law and is preempted by it.

A close reading of 49 USC 1404 leads us to conclude, however, that the Federal statute is inapplicable to the situation presented under the circumstances of this case. In the present case the injury occurred inside the aircraft and not upon the surface of the earth. We do not read 49 USC 1404 as preventing the states from imposing liability upon the owners of airplanes in these circumstances.

Therefore, we conclude that MCL 259.180a(l); MSA 10.280(1) is not entirely preempted by the Federal legislation. As written, the Michigan statute imposes liability upon aircraft owners both for injuries incurred on the ground and those suffered inside the aircraft. Although liability for the former species of injury must yield to the Federal mandate, the liability imposed by the statute for the latter type of injury may be severed from the statute without doing injustice to the legislative intent. See Braun v McPherson, 277 Mich 396, 403; 269 NW 211 (1936), People v De Silva, 32 Mich App 707, 714; 189 NW2d 362 (1971).

Reversed and remanded. No costs, interpretation of statutes being involved.

D. E. Holbrook, Jr., J., concurred.

D. C. Riley, J.

(dissenting). I am not persuaded that Branyan v Alpena Flying Service, Inc, 65 Mich App 1; 236 NW2d 739 (1975) is dispositive in the case at bar. In Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969), the Supreme Court addressed and rejected the modern trend toward a "dominant contacts” inquiry into conflicts analysis, and instead reaffirmed the doctrine of lex loci delicti. Branyan, however, declined to follow Abendschein for the following reason:

"Defendant argues that as an intermediate appellate court, we may neither adopt a conflict-of-laws standard different from that traditionally followed in Michigan nor entertain an invitation to overrule Supreme Court precedent. However, we need not decide whether Abendschein should be overruled in deciding the question before us since the rule enunciated in Abendschein does not apply to this case. The Abendschein Court expressly excluded the lex loci delicti rule from cases involving airplane accidents when it stated at 519; 170 NW2d 140:
" 'Bearing in constant mind that this case and its issue deals only with actions at law for damages arising out of motorcar (not airplane) accidents’. (Emphasis added.)
"Having explained why we cannot, on the authority of Abendschein v Farrell, supra, declare that the plaintiffs are limited in the amount of damages they may recover, we now turn to a disposition of this case which we think both valid and within our authority.” 65 Mich App at 5-6.

For two reasons, I would not hold Branyan applicable in the present case. First, the above quoted passage from Abendschein was mere dicta and was further directly responsive to Babcock v Jackson, 12 NY2d 473; 240 NYS2d 743; 191 NE2d 279; 95 ALR2d 1 (1963), itself an automobile case and an early proponent of the dominant contacts principle. Second, I am unable to fathom a sufficiently debatable reason why aircraft litigation should be excepted from the lex loci delicti doctrine. Indeed, its underlying policy and justification — to provide for certainty and eliminate forum shopping — is equally relevant not only to automobile and airplane mishaps, but other tort situations as well.

Plaintiff argues that even if Branyan is not directly controlling, the enactment of MCL 259.180a(l); MSA 10.280(1) itself embodies a public policy determination pertaining to the vicarious liability of aircraft owners resulting from collisions that would make defendant here liable. However, the mere fact that a Michigan statute permits a cause of action nonexistent in a foreign jurisdiction has been held insufficient by the Supreme Court to raise the issue of contravention of the forum state’s public policy:

"The fact Michigan statutory regulations of the rights of a motor vehicle guest passenger may differ from Ontario statutory provisions, or even the provisions of the common law governing like rights, is not a reason for holding the statute of the foreign jurisdiction contravenes public policy here.” Kaiser v North, 292 Mich 49, 57; 289 NW 325 (1939).

See also Sexton v Ryder Truck Rental, Inc, 84 Mich App 69, 73; 269 NW2d 308 (1978). In my opinion this judgment is well advised; to hold otherwise would mean, in large part, the eventual engulfment by the public policy exception of the lex loci delicti doctrine itself, for whenever foreign law would prohibit a cause of action sanctioned by our state, "public policy” would automatically dietate application of Michigan law, and thus unduly frustrate the intent of the lex loci delicti principle, supra, as a problem solving choice of law rule.

Whatever merits attach to an alternative inquiry into choice of law jurisprudence, I believe we are nevertheless duty bound to apply those principles promulgated by the Supreme Court, unless we are convinced it would rule differently today. Turner v Ford Motor Co, 81 Mich App 521, 527-528; 265 NW2d 400 (1978), Burton Drywall, Inc v Kaufman, 69 Mich App 85, 90; 244 NW2d 367 (1976), rev’d on other grounds, 402 Mich 366; 263 NW2d 249 (1978). Because I am unable to make such a determination, I would affirm the lower court’s grant of summary judgment.

       Although the language in Branyan, supra, states that the enactment of a statute is "conclusive” as to the public policy of the state, we do not go quite that far in our analysis. We do believe that the enactment of such a statute is a positive indication of the public policy of the state. For purposes of the public policy exception to the lex loci delicti rule, however, the Legislature’s indication of public policy must also be balanced against the public policy opposed to forum shopping by potential litigants. Such a balancing requires consideration of all available circumstances.

       The "dominant contacts” approach to choice of law questions requires an assessment of the equities of the parties, the contacts involved between the forums, and the competing state policies in an effort to determine what law should apply to the case. Sexton v Ryder Truck Rental, Inc, 84 Mich App 69, 70, fn 2; 269 NW2d 308 (1978).


source: Caselaw Access Project

author: J. E. Townsend, J.

license: Public Domain

text:
    HILLMAN v CONSUMERS POWER COMPANY
    Docket No. 77-5210.
    Submitted November 9, 1978, at Detroit.
    Decided June 6, 1979.
    Plaintiff, George H. Hillman, Jr., filed a complaint with the Civil Rights Commission against defendant, Consumers Power Company, alleging race and age discrimination forcing his retirement. He then filed two successive suits in Federal court, which were voluntarily dismissed. A third suit was instituted which the Federal court dismissed with prejudice. The Civil Rights Commission, during the pendency of the third Federal court action, dismissed plaintiff’s complaint. Plaintiff then filed suit in the Jackson Circuit Court alleging loss of salary, demotion and failure to promote based on age and racial discrimination and breach of contract. The court, Russell E. Noble, J., granted accelerated and summary judgment for defendant, holding that plaintiff failed to exhaust his administrative remedies and that the Federal law preempted the field. Plaintiff appeals. Held:

    1. Plaintiff need not exhaust his administrative remedies before pursuing his "cumulative judicial remedies”.
    2. Federal law does not preempt the field of age or race discrimination in employment.
    Reversed and remanded.
    1. Civil Rights — Racial Discrimination — Age Discrimination — Remedies.
    A litigant claiming race or age discrimination need not exhaust state administrative remedies before pursuing his "cumulative judicial remedies”.
    2. Civil Rights — Age Discrimination — Racial Discrimination — Federal Preemption.
    Federal statutory preemption occurs when compliance with both Federal and state regulation is physically impossible, when the nature of the subject matter requires Federal supremacy and uniformity or when Congress intended to displace the state legislation; regulation of employment with regard to age and race discrimination has not been federally preempted.

      References for Points in Headnotes

       15 Am Jur 2d, Civil Rights § 500.

       15 Am Jur 2d, Civil Rights §§ 357, 358.

      Haynes & Donnelly, P.C., for plaintiff.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Seth M. Lloyd), for defendant.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   J. E. Townsend, J.

Plaintiff began employment with defendant in 1937. He advanced regularly through the ranks until 1970 when he suffered a demotion. Shortly thereafter, however, plaintiff was promoted to the position of Assistant Director for Customer Relations.

When the Director of Customer Relations vacated such position, plaintiff anticipated that he would be considered the logical choice to occupy that position. However, on April 1, 1974, a younger, black employee was named to such position. Plaintiff was then 58 years old. Plaintiff voluntarily retired several months thereafter.

On March 5, 1975, plaintiff filed a complaint with the Michigan Civil Rights Commission alleging that he had been denied promotion and effectively forced to retire because of his age and race. In April, 1975, plaintiff instituted suit in Federal court on the same grounds. That action and a later Federal court action were voluntarily dismissed by plaintiff following which a third complaint, also based on age and race discrimination, was filed in September, 1975. After determining that plaintiff had failed to comply with the jurisdictional procedural requirements of the Federal statute, and particularly the notice requirements of 29 USC 626(d), the Federal court dismissed plaintiff’s lawsuit with prejudice on June 14, 1976.

In the meantime, on December 16, 1975, the Michigan Civil Rights Commission dismissed plaintiff’s complaint on grounds of insufficient evidence.

Following such adverse determinations, plaintiff commenced action in the Jackson County Circuit Court in November of 1976, alleging breach of an employment contract and damages for discrimination on account of age and race resulting in a loss of salary, demotion and failure to promote.

In granting defendant’s motions for accelerated judgment and for summary judgment, the circuit court concluded that plaintiff had failed to exhaust his administrative remedies and that his suit was, in any event, barred by the preemptive nature of the Federal statute. Plaintiff thereupon appealed to this Court and presents for adjudication two issues; namely, whether plaintiff must first exhaust his administrative remedies, and whether the Federal statute preempts the field.

I

Statutory remedies are not exclusive, and plaintiff need not exhaust state administrative remedies before pursuing his “cumulative judicial remedy” available to persons claiming race or age discrimination. Such principle has been established beyond dispute by the Michigan Supreme Court in Holmes v Haughton Elevator Co, 404 Mich 36, 41-42; 272 NW2d 550 (1978), Pompey v General Motors Corp, 385 Mich 537, 559-560; 189 NW2d 243 (1971).

II

The question as to whether the Federal age discrimination in employment statute, 29 USC 621-634, preempts state regulation of age discrimination in employment, appears to be a question of first impression in the State of Michigan.

Federal preemption occurs when compliance with both Federal and state regulations is physically impossible, when the nature of the subject matter requires Federal supremacy and uniformity or when Congress intended to displace the state legislation. Florida Lime & Avocado Growers, Inc v Paul, 373 US 132, 142-152; 83 S Ct 1210; 10 L Ed 2d 248 (1963).

It is possible for an employer to comply with both state and Federal statutes by refraining from employment discrimination based on age.

A careful review of the Federal statute indicates that Congress did not expressly or impliedly oust the states from their power to legislate as to age discrimination. To the contrary, the Federal act anticipates and encourages state regulation. 29 USC § 633(a) specifically states that the Federal law will not affect the jurisdiction of state agencies performing like functions and 29 USC § 633(b) gives state proceedings certain priorities over Federal actions relating to age discrimination. Simpson v Alaska State Comm for Human Rights, 423 F Supp 552, 555-556 (D Alas, 1976).

Preemption cannot be inferred alone from the comprehensive nature of the Federal legislation. New York State Dep’t of Social Services v Dublino, 413 US 405, 414-415; 93 S Ct 2507; 37 L Ed 2d 688 (1973).

Historically, states have exercised broad powers in the regulation of employment practices. Thus, the subject matter falls within the ambit of traditional state regulation. DeCanas v Bica, 424 US 351, 356-357; 96 S Ct 933; 47 L Ed 2d 43 (1976), recognized traditional state authority and power to regulate the employment relationship even when the specific subject regulated was the employment of illegal aliens. The Court so held despite the fact that immigration and naturalization and the regulation of aliens in general are matters clearly within the scope of Federal powers and concern. (US Const, art I, § 8[4]).

Defendant argues that state remedies conflict with the informal voluntary compliance provisions of Federal law. Different remedies are provided in the state and Federal statutes. However, § 633(b) of the Federal statute accords a degree of priority to state enforcement in preference to Federal enforcement. From such subordination, we infer that Congress, as a general principle, intended to encourage state enforcement rather than Federal and did not consider state litigation to be inconsistent with Federal enforcement.

Defendant further argues that, while the Federal statute recognizes state statutory regulation of age discrimination, by omitting recognition of nonstatutory, judicial remedies, such remedies are preempted. We disagree. Once the power of the state to regulate is conceded, the remedy and mode of enforcement is a matter of state discretion, absent such a conflict with Federal remedies as will require application of the doctrine of Federal supremacy. No such conflict exists on the facts of this case.

Defendant would have us strike down the "cumulative judicial remedy” in a state court recognized by the Holmes and Pompey decisions for civil rights claimants. We find no sound basis to conclude that the Federal statute prohibiting employment discrimination because of age precludes judicial remedies in a state court.

Neither basis relied upon by the trial court and presented to this Court for decision on appeal justified a dismissal of plaintiffs action.

Reversed and remanded for further proceedings.


author: Beasley, P.J.

text:
    AMERICAN FELLOWSHIP MUTUAL INSURANCE COMPANY v INSURANCE COMPANY OF NORTH AMERICA
    Docket No. 78-403.
    Submitted April 5, 1979, at Detroit.
    Decided June 6, 1979.
    Norene Wudarcki brought an action against plaintiff, American Fellowship Mutual Insurance Company (AFM), for damages for personal injuries she sustained in an attack in a parking lot in which she rented space. The lot’s mechanical gate designed to control admission had been damaged two months prior to the attack by a motorist insured by AFM, which was charged with negligence and breach of contract in failing to repair the gate, through which the attackers presumably gained entrance to the parking lot. AFM filed suit against defendant, Insurance Company of North America (INA) seeking a declaration that a policy of insurance issued by INA to AFM should cover any liability of AFM to Norene Wudarcki. The Wayne Circuit Court, Horace W. Gilmore, J., granted summary judgment for defendant on the basis of an exclusion of insurance coverage for "personal injury or property damage due to the rendering of or failure to render * * * any professional service”. Plaintiff appeals. Held:

    Claims adjusting services by AFM constitute the rendering of "professional services” within the meaning of the policy exclusion.
    Affirmed.
    1. Insurance — Exclusions From Coverage — Professional Services — Adjusting Services.
    Adjusting services performed by an insurance company fall within a liability policy exclusion for "personal injury or property damage due to the rendering of or failure to render * * * any professional service”.
    References for Points in Headnotes

       44 Am Jur 2d, Insurance § 1429.
    Coverage, and exclusions, of liability or indemnity policy on physician, surgeon, dentist, and the like. 35 ALR2d 452.

      2. Insurance — Exclusions From Coverage — Professional Services — Adjusting Services.
    An exclusion from coverage liability for "personal injury or property damage due to the rendering of or failure to render * * * any professional service” in a liability policy issued to an insurance company properly excludes from coverage liability for any business activity conducted by the insured.

      Daniel Zolkower, for plaintiff.

      Harvey, Kruse & Westen, P.C., for defendant.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Beasley, P.J.

Plaintiff, American Fellowship Mutual Insurance Company (AFM), sought a declaratory judgment against defendant, Insurance Company of North America (INA), to determine that a policy of insurance issued by INA would cover the alleged liability of AFM to Norene Wudarcki. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals as of right.

AFM is the defendant in a civil action brought by Norene Wudarcki to recover damages for personal injuries and other losses. In her complaint, she avers that she suffered severe injuries when she was attacked in a parking lot in which she rented a parking space. The mechanical gate designed to control admission to the lot had been damaged two months earlier by an automobile driven by an insured of AFM. Presumably, the attackers gained entrance to the parking lot via the damaged gate. AFM is charged with negligence and breach of contract for failure to have the gate repaired in timely fashion. INA has been asked to take over AFM’s defense under the terms of an insurance policy purchased by AFM from INA.

The sole question to be determined on appeal is whether the contract of insurance issued by INA covers liability arising out of the alleged negligent operation of AFM’s business.

INA’s policy is labeled an "Office Building Policy” and insures AFM’s building at 2624 West Grand Boulevard in Detroit. The INA policy does not cover 2281 West Grand Boulevard, which is the address of an apartment adjoining the parking lot where the attack on Ms. Wudarcki took place. The types of coverage listed are: (1) real property, (2) personal property, (3) additional expenses, and (4) certain "legal liabilities” arising out of an "accident”.

Plaintiff, AFM, claims the policy is a general liability one and defendant, INA, does not appear to deny that premise. However, the policy contains several exclusions, one of which reads as follows:

"n. personal injury or property damage due to:
"(1) the rendering of or failure to render
"(a) medical, surgical, dental, X-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith;
"(b) any service or treatment conducive to health or of a professional nature;
"(c) any cosmetic, tonsorial, massage, physiotherapy, chiropody, hearing aid, optical or optometrical services or treatments;
"(d) any professional service; * * *.”

AFM contends that the term "professional service” was not defined in the INA policy and that the trial court’s determination that the adjusting services of AFM were professional services within the meaning of the insurance contract was error.

In ruling that the adjusting services of AFM constituted professional services, the trial court cited OAG 1975-1976, No 4, 899, pp 181, 183-184 (October 23, 1975):

"* * * it is my opinion that where the legislature creates a regulatory board with power to license and regulate an occupation, that occupation becomes a profession within the meaning of the Const 1963, art 5, §5.”

The court also looked to the Michigan Professional Service Corporation act, MCL 450.221; et seq.; MSA 21.315(1) et seq., and specifically, MCL 450.222; MSA 21.315(2), wherein a "professional service” is defined as a "personal service to the public which requires as a condition precedent to the rendering of such service the obtaining of a license or other legal authorization”. AFM would appear to be within that definition.

The "professional service” exclusion in this case excludes "personal injury or property damage due to the rendering of or failure to render * * * any professional service”. In Hercules Drawn Steel Corp v Doran Electric Co, Inc, the court reviewed the applicable rules for interpretation of contracts. Although the Court stated that indemnity claims are to be construed strictly against the party who drafts them, it is the duty of the court to determine, to the extent possible, the true intent of the parties by construction of the instrument. In determining the parties’ true intent, a court considers the language employed, the subject matter and the surrounding circumstances under which the parties entered into the agreement.

Although one might argue in the abstract whether the services of an insurance adjustor could be deemed a "professional service”, in reviewing the surrounding exclusions as stated in clause "n” of the policy, it is clear that services such as those performed by plaintiff were intended to be excluded from coverage.

This same interpretation has been given to similar exclusions in other jurisdictions. An "owners’, landlords’ and tenants’ ” insurance policy issued to a beauty shop operator and covering, as the court put it, "ordinary risks of dwellings and commercial buildings”, was involved in Knorr v Commercial Casualty Ins Co. An exclusion specifically provided that the policy did not apply to the rendering of any "professional services” by any person, including any physician, surgeon, dentist, optician, nurse, barber, manicurist, masseur, chiropodist, or other attendants. The injury occurred when a customer seated under a hair dryer was struck on the head when the machine unexplainedly fell forward and downward. Holding that the drying of a customer’s hair in the beauty parlor by means of a mechanical hair dryer constituted professional services and, thus, came within the exclusion of the policy, the court said that since the policy was issued specifically to cover a beauty parlor, it was clear that the term "professional services” referred to the technical work performed by beauticians and hairdressers.

In Multnomah County v Oregon Automobile Ins Co, plaintiff sued the county for the failure of prison authorities to give a prisoner a necessary shot of insulin. The court, in interpreting an exclusion for a "professional act or service” within a liability policy, in which there was an exclusion for "(2) [i]njury, sickness, disease, death or destruction due to the rendering of or failure to render any professional service”, found that a jail medical technician was rendering a "professional service” and stated:

"In determining whether a particular act or omission is of a professional nature, the act or omission itself must be looked to and not the title or character of the party who performs or fails to perform the act. Marx v Hartford Accident and Indemnity Company, supra. The decision to give or to withhold insulin required the application of special learning which the medical attendant lacked and Barendrecht [the prisoner] was therefore deprived of a professional service which, if given, would have resulted in the required injection.
"5. The County also contends that the provision is ambiguous and can be construed as being applicable only to a set of facts which involve a direct and immediate failure of a licensed physician to act or to act properly in relation to a patient. In effect, the contention is that the exception contemplates only a set of facts which would substantiate an action of medical malpractice against a physician. We cannot so construe it. The language is plain and unambiguous. It excepts from coverage the insured’s failure to render a professional service.” 256 Or 24, 28-29.

In the case at bar, the trial court did not err in determining that the "professional services” exclusion, as used in the life insurance contract, refers to any business activity conducted by plaintiff insurance company. Moreover, a contract of insurance is not to be construed to indemnify a party against the consequences of its own negligence unless such intent is unequivocally stated in the clearest language. No such language which would cover the services and business activity of plaintiff, AFM, within the building is expressed. Rather, the exclusion clause "n”, viewed in full context, makes it clear that the insurance policy was only intended to cover liabilities arising out of building ownership and/or occupancy.

Affirmed.

       64 Mich App 117, 120-121; 235 NW2d 82 (1975).

        Id., p 121. Kellogg v Kellogg Toasted Corn Flake Co, 212 Mich 95; 180 NW 397 (1920), Montgomery v Central National Bank & Trust Co of Battle Creek, 267 Mich 142; 255 NW 274 (1934).

       171 Pa Super 488; 90 A2d 387 (1952).

       256 Or 24; 470 P2d 147 (1970).

        Michigan Mutual Liability Ins Co v Fruehauf Corp, 63 Mich App 109, 118; 234 NW2d 424 (1975).


author: R. M. Maher, J. Bashara, P.J.,

text:
    WARNER v BRIGHAM
    Docket No. 78-838.
    Submitted February 7, 1979, at Lansing.
    Decided June 6, 1979.
    Linda K. Warner was injured when the car in which she was riding was struck by an automobile driven by Michael A. Brigham. Mrs. Warner, William H. Warner, her husband, and William H. Warner, Jr., her son, brought an action against Michael A. Brigham to recover for noneconomic losses suffered as a result of the accident, alleging serious impairment of a body function and permanent serious disfigurement. The Washtenaw Circuit Court, Edward D. Deake, J., dismissed William Warner’s claim for loss of consortium. The plaintiffs appeal. The sole issue on appeal is whether the trial court erred in holding that loss of consortium does not survive under the no-fault automobile insurance act. Held:

      A cause of action for loss of consortium does survive under the no-fault act where the injuries suffered by a plaintiffs spouse meet the threshold requirements of the no-fault act. The injuries suffered by Mrs. Warner met this requirement and Mr. Warner is entitled to press his claim for loss of consortium.
    Reversed and remanded for trial on the issue of damages suffered by Mr. Warner.
    Bashara, P.J., dissented. He would hold that the Legislature, in enacting the no-fault act, intended to abolish the type of common-law derivative tort action contemplated by an action for damages for loss of consortium. He would affirm.
    References for Points in Headnotes

       New Topic Service Am Jur 2d, No-Fault Insurance § 15.

       New Topic Service Am Jur 2d, No-Fault Insurance § 26.

       73 Am Jur 2d, Statutes §§ 145, 146, 194, 195.

       73 Am Jur 2d, Statutes §§ 194, 195.
    New Topic Service Am Jur 2d, No-Fault Insurance § 14.

       New Topic Service Am Jur 2d, No-Fault Insurance §§ 14, 26.

       73 Am Jur 2d, Statutes §§ 314-316.

       16 Am Jur 2d, Constitutional Law § 550.

       73 Am Jur 2d, Statutes § 274.
    New Topic Service Am Jur 2d, No-Fault Insurance § 15.

      Opinion of the Court
    1. Insurance — Automobiles — No-Fault Insurance — Traditional Tort Liability — Threshold Requirements — Statutes.
    The provision of the no-fault automobile insurance act which abolishes much of the traditional tort liability arising out of the ownership, maintenance or use of a motor vehicle does retain traditional tort liability if certain threshold requirements are met; once the threshold is crossed, the parties step from the purely statutory realm of no-fault back into the common law and recovery for any noneconomic loss compensable at common law may be sought (MCL 500.3135; MSA 24.13135).
    2. Insurance — Automobiles — No-Fault Insurance — Noneconomic Loss — Loss of Consortium — Threshold Requirement.
    A cause of action for loss of consortium still exists under the no-fault automobile insurance act where a plaintiffs spouse has suffered death, serious impairment of body function or permanent serious disfigurement.
    Dissent by Bashara, P.J.
    3. Statutes — Ambiguities — Judicial Construction — Legislative Purpose — Object of Statute.

      A statute which is ambiguous or susceptible to two or more interpretations is open to judicial construction and should be reasonably construed in light of the legislative purpose of the statute and the object sought to be accomplished.

    4. Insurance — Automobiles — No-Fault Insurance — Tort Liability.

      The provision in the no-fault automobile insurance act which abolishes tort liability with several exceptions is sufficiently lacking in clarity so as to necessitate judicial construction (MCL 500.2135; MSA 24.13135).

    5. Insurance — Automobiles — No-Fault Insurance — Tort Liability — Derivative Actions — Loss of Consortium.

      It was the intent of the Legislature, in enacting the provision in the no-fault automobile insurance act which abolishes tort liability with several exceptions, to abolish the type of common-law derivative tort action such as that contemplated by an action for damages for loss of consortium.

      6. Statute — Statutory Construction — Specific Statute.

      It is the general rule that, where the Legislature provides speciñc direction in a statute, express mention of one thing implies the exclusion of other similar things.

    7. Constitutional Law — Torts — Abolition of Remedy — Due Process.

      The Legislature need not provide an adequate substitute remedy before abolishing a common-law cause of action in tort; the constitutionality of a statutory abolition of a common-law remedy is measured by the traditional due process test, i.e., whether the legislation bears a reasonable relationship to a permissible legislative objective (US Const, Am XIV; Const 1963, art 1, §17; Const 1963, art 3, § 7).

      8. Insurance — Automobiles — No-Fault Insurance — Tort Liability — Statutory Construction — Statutes.

      The provision in the no-fault automobile insurance act which, with several exceptions, abolishes tort liability should be strictly construed in light of legislative intent; limiting tort recovery to injured persons who meet the requisite threshold and to other certain speciñed exceptions is the only reasonable interpretation that can be assigned this provision (MCL 500.3135; MSA 24.13135).

      Forsythe, Campbell, Vandenburg, Clevenger & Bishop, P.C. (by Donald E. Shelton), for plaintiffs.

      Douvan & Harrington (by Gordon J. Barnett), for defendant.
    Before: Bashar a, P.J., and V. J. Brennan and R. M. Maher, JJ.
   R. M. Maher, J.

Plaintiffs bring this appeal from an order of the trial court dismissing plaintiff William Warner’s claim for loss of consortium resulting from injuries suffered by Linda Warner in an automobile accident. Linda Warner was injured when the car in which she was riding was struck by an automobile driven by defendant. Ms. Warner, joined by her husband and son, brought this action to recover noneconomic losses suffered as a result of the accident, alleging serious impairment of body function and permanent serious disfigurement under MCL 500.3135(1); MSA 24.13135(1). The sole issue before us on appeal is whether the trial court erred in holding that loss of consortium does not survive under the no-fault automobile insurance act.

The applicable statute is MCL 500.3135; MSA 24.13135, which provides in part:

"(1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disñgurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:
"(b) Damages for noneconomic loss as provided and limited in subsection (1).” (Emphasis added.)

Defendant argues that § 3135 abolishes all tort liability except that specifically described in the statute. We agree. However, we are of the opinion that claims for loss of consortium come within the statute, where the claimant’s spouse has suffered death, serious impairment of body function or permanent serious disfigurement.

We think, that the language of the statute is clear. A person remains liable for noneconomic loss if the injured person has suffered injuries which meet the threshold requirements. The statute does not limit liability only to those losses suffered by the injured person, excluding losses suffered by another as a result of the serious injury. Clearly any noneconomic loss compensable at common law may be recovered under § 3135. Once the threshold is crossed, the parties step from the purely statutory land of no-fault back into the common law, with all its virtues and shortcomings. We agree with the interpretation of § 3135 stated in Luce v Gerow, 89 Mich App 546; 280 NW2d 592 (1979):

"MCL 500.3135(1); MSA 24.13135(1), retains traditional tort liability if certain threshold requirements are met.”

The jury in this case having already decided that Linda Warner’s injuries met the threshold requirements of § 3135, William Warner is entitled to press his claim for loss of consortium. Reversed and remanded for trial on the issue of damages suffered by William Warner. No costs.

V. J. Brennan, J., concurred.

Bashara, P.J.,

(dissenting). I respectfully dissent. Plaintiff’s spouse sustained injuries in an automobile accident. A jury found the injuries met the requisites of MCL 500.3135(1); MSA 24.13135(1), and awarded her $3,000 in damages.

The trial court, in dismissing the consortium claim, stated that loss of consortium is no longer recoverable under the recent no-fault legislation.

Plaintiff contends that where an injured person meets the threshold requirements of § 3135, the defendant remains subject to tort liability for the loss of consortium claim of the injured person’s spouse. He claims the statute does not restrict tort liability to those losses suffered only by the injured party.

This issue is one of first impression. The statute in question, MCL 500.3135; MSA 24.13135, states:

"Sec. 3135. (1) A person remains subject to tort liability for noneconomic loss caused by his ownership, maintenance or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function or permanent serious disfigurement.
"(2) Notwithstanding any other provision of law, tort liability arising from the ownership, maintenance or use within this state of a motor vehicle with respect to which the security required by subsections (3) and (4) of section 3101 was in effect is abolished except as to:
"(a) Intentionally caused harm to persons or property. Even though a person knows that harm to persons or property is substantially certain to be caused by his act or omission, he does not cause or suffer such harm intentionally if he acts or refrains from acting for the purpose of averting injury to any person, including himself, or for the purpose of averting damage to tangible property.
"(b) Damages for noneconomic loss as provided and limited in subsection (1).
"(c) Damages for allowable expenses, work loss and survivor’s loss as defined in sections 3107 to 3110 in excess of the daily, monthly and 3 year limitations contained in those sections. The party liable for damages is entitled to an exemption reducing his liability by the amount of taxes that would have been payable on account of income the injured person would have received if he had not been injured.” (Emphasis added.)

A statute may be judicially construed if the language used is ambiguous or the statute is susceptible to two or more meanings. Statutory language should be given a reasonable construction considering the purpose of the statute and the object sought to be accomplished. King v Director of the Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977). I con-elude that § 3135 is sufficiently lacking in clarity so as to necessitate judicial construction.

Enactment of the no-fault legislative scheme envisioned a correction of the deficiencies and problems that had been found to exist in the tort system. Shavers v Attorney General, 402 Mich 554, 621-622; 267 NW2d 72 (1978).

The operative language of the statute, coupled with the expressed purpose of limiting automobile injury tort actions in the courts, leads me to believe that the Legislature intended to abolish the type of common-law derivative tort action contemplated by this suit.

Where the Legislature provides specific direction in a statute, it is the general rule that express mention of one thing implies the exclusion of other similar things. People v Malik, 70 Mich App 133, 136; 245 NW2d 434 (1976), Baker v General Motors Corp, 74 Mich App 237, 246; 254 NW2d 45 (1977).

Unless tort liability for an element of damages has been specifically retained in § 3135(2), the right to recover those damages has been abolished.

Plaintiff argues that eliminating his cause of action without replacing it in the no-fault system is violative of due process. This argument was recently addressed by the Supreme Court in Shavers, supra, at 620-621, wherein it was stated that:

"[tjhe Legislature need not provide an 'adequate substitute, remedy before abolishing a common-law cause of action in tort; Mackin v Detroit-Timkin Axle Co, 187 Mich 8, 13; 153 NW 49 (1915); Naudzius v Lahr, 253 Mich 216; 234 NW 581 (1931); Silver v Silver, 280 US 117; 50 S Ct 57; 74 L Ed 221 (1929). The abolition of a common-law tort remedy is measured by the traditional due process test, namely, whether the legislation bears a reasonable relationship to a permissible legislative objective. See discussion, Part IV, supra.
"We believe that the abolition of the tort remedy for personal injury resulting from motor vehicle accidents was clearly justified by deficiencies in the tort system.”

Plaintiff also raises an equal protection argument, since a surviving spouse would be able to bring a derivative action for wrongful death under the statute.

Death is one of the threshold statutory requirements for recovery. Clearly, where death results, the injured person cannot maintain his or her own action. Recovery in tort where the injury is death must always be derivative. A wrongful death action is sui generis and cannot be compared to the other requirements of §3135(1). Furthermore, an equal protection argument was previously addressed by the Court in Shavers, supra, at 624, fn 51, and the statutory requirements were found not to be constitutionally offensive:

"The classification reflects a legislative policy which, although it discriminates between victims, does not in our judgment constitute an invidious discrimination offending the equal protection clause.”

See also O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979).

MCL 500.3135; MSA 24.13135 should be strictly construed in light of legislative intent. Limiting tort recovery to injured persons who meet the requisite threshold and to other certain specified exceptions is the only reasonable interpretation that can be assigned this section of the no-fault enactment.

I see no logical reason why a party who has suffered no physical injury should be given preference in recovering noneconomic losses over persons with physical injuries which are insufficient to satisfy the threshold requirements.

I would affirm. No costs, a statutory question being involved.


author: R. B. Burns, J.

text:
    GRIGGS v THE BUDD COMPANY
    Docket No. 78-2095.
    Submitted February 22, 1979, in Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Ida Griggs sustained, in the course of her employment with The Budd Company, an aggravation of a previously existing nonoccupational back injury and was paid workmen’s compensation benefits. During her period of disability she suffered a further aggravation of her condition in a bus accident. She recovered damages for her injuries from the bus company. Her employer sought reimbursement of compensation paid from the proceeds of the recovery. The Workmen’s Compensation Appeal Board denied reimbursement on the ground that the third party’s liability did not arise out of the same work-related incident that gave rise to the employer’s liability for payment of compensation. The Budd Company appeals by leave granted. Held:

    An employer may be liable for payment of compensation for aggravation of an injury. If such liability exists, the employer is entitled to reimbursement out of the proceeds of a recovery from a third party whose negligence caused an aggravation. Reimbursement is to be limited to only that portion of the recovery which represents compensation for the aggravation of the existing injury. No reimbursement is due for that portion of the recovery of damages attributable to an injury readily distinguishable from the injury for which the employer must pay compensation.
    Reversed and remanded.
    1. Workmen’s Compensation — Aggravation of Existing Injury — Liability for Payment of Compensation.
    An employer may be liable to pay workmen’s compensation benefits for aggravation of a compensable injury by a subsequent intervening cause; the disability resulting from the aggravation is traceable to the original injury, and thus compensable, if the second injury follows as a sequence and is a natural result of the original injury.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation § 333 et seq.

       82 Am Jur 2d, Workmen’s Compensation § 430 et seq.

       81 Am Jur 2d, Workmen’s Compensation §§ 65, 77.
    82 Am Jur 2d, Workmen’s Compensation § 429.

      2. Workmen’s Compensation — Aggravation of Existing Injury — Third Party’s Negligence.
    The negligence of a third party is not a superseding intervening cause of aggravation of a compensable injury to an employee if the negligence is reasonably foreseeable and does not produce an injury different in kind or wholly disconnected from the original injury.
    3. Workmen’s Compensation — Third Parties — Aggravation of Existing Injury — Reimbursement to Employer.
    An employer who must pay compensation for the aggravation of an employee’s existing compensable injury is entitled to reimbursement from a recovery against a negligent third party who caused a further aggravation to the extent that the employer has paid compensation for that aggravation; if the third party caused separate consequences the employer need not pay compensation for such consequences and, therefore, has no right to recover reimbursement from the third party for those consequences.

      Kelman, Loria, Downing, Schneider & Simpson (by Rodger G. Will), for plaintiff.

      Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell), for defendant.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Plaintiff worked for defendant as a storeroom attendant, dispensing tools and materials. On September 8, 1972, she suffered a compensable disabling aggravation of a previously existing nonoccupational back injury while cutting cable in the storeroom. She was subsequently hospitalized, and underwent back surgery. In August, 1973, she was still disabled with back trouble, but on the road to recovery. Unfortunately, she then suffered a further aggravation of the back injury when a bus in which she was a passenger struck a pavement obstruction. She was thrown up against the bus ceiling, back into the seat, and then forward, striking her head on a post. She sued the bus authority, alleging, inter alia, aggravation of her back injury. The suit was settled before trial. Defendant argued before the Workmen’s Compensation Appeal Board that it was entitled under MCL 418.827; MSA 17.237(827) to reimbursement for payment of compensation from plaintiffs settlement with the third-party tortfeasor. The board denied reimbursement because the statute appears by its language to apply only where the third party’s liability arose out of the same work-related incident giving rise to the employer’s liability for compensation. Defendant appeals.

Although the language of MCL 418.827(1); MSA 17.237(827X1) supports the board’s interpretation, the Supreme Court has given the statute a more expansive interpretation. An employer may be liable for compensation for aggravation of a compensable injury by a subsequent intervening cause. See, e.g., Oleszek v Ford Motor Co, 217 Mich 318; 186 NW 719 (1922). Interpreting a predecessor of the instant statute, the Supreme Court, in Overbeek v Nex, 261 Mich 156; 246 NW 196 (1933), inferred from the absence of an express statement as to the statute’s application to the aggravation of original injuries as a result of negligent acts of third parties an intention by the Legislature to allow subrogation where the employer has paid compensation for the aggravation. The Court reasoned that there is no valid distinction between allowing an employer to be subrogated to the rights of an employee against those third parties responsible for the original injury and those third parties responsible for an aggravation of the original injury.

Although the statute interpreted in Overbeek has since been amended, no amendment has significantly changed the language relied upon by the board in this case, and the statute still does not address the aggravation issue. The Legislature may be presumed to have acquiesced in the Overbeek interpretation. See, e.g., Magreta v Ambassador Steel Co, 380 Mich 513, 519-520; 158 NW2d 473, 475-476 (1968). Thus, defendant’s right to reimbursement turns upon its liability to pay compensation for the aggravation. See Osment v Charnley, 65 Mich App 155, 159; 237 NW2d 226, 228 (1975), lv den 397 Mich 835; 244 NW2d 103 (1976).

The same rules of causation applicable in negligence cases apply in compensation cases in the determination of whether an employer is liable for aggravation of an injury caused by third parties. Overbeek v Nex, supra, at 162; 246 NW at 198-199.

"Where there is a right of recovery due to the original injury and the disability at the time of the hearing is directly traceable thereto, the intervention of other and aggravating causes by which such disability has been increased, if the claimant is not himself to blame therefor, is no bar to recovery.” Oleszek v Ford Motor Co, supra, at 321-322; 186 NW at 721.

A disability is "traceable” if "the second injury follows as a sequence and natural result of the original injury”. Crawley v General Motors Truck Corp, 259 Mich 503, 505; 244 NW 143 (1932). The negligence of a third party is not a superseding intervening cause if the negligence is reasonably foreseeable and does not produce an injury different in kind, or wholly disconnected from, the original injury. Comstock v General Motors Corp, 358 Mich 163, 178-179; 99 NW2d 627, 635; 78 ALR2d 449, 458-459 (1959), Crawley v General Motors Truck Corp, supra, at 506; 244 NW at 144. The separate consequences of the intervening cause must "admit of definite ascertainment”. Oleszek v Ford Motor Co, supra, at 323; 186 NW at 721.

Although Oleszek, and the cases applying Oleszek where aggravation of existing injury has been alleged, see Martin v Ford Motor Co, 401 Mich 607, 619; 258 NW2d 465, 470 (1977), Overbeek v Nex, supra, Crawley v General Motors Truck Corp, supra, Osment v Charnley, supra, all involve situations where the aggravation was alleged to have been caused by medical malpractice or complications in the treatment of injury, medical malpractice is not the only aggravating factor for which an employer may remain liable for compensation, and hence, entitled to subrogation. See Overbeek v Nex, supra, at 162; 246 NW at 198-199. Rather, the cases merely reflect the application of a particular rule of causation concerning aggravation of injuries through medical malpractice. See Martin v Ford Motor Co, supra. An aggravating factor analogous to the instant situation was that in Adams v W E Wood Co, 203 Mich 673; 169 NW 845 (1918). There, a workman refractured his arm when shoved or crowded into the door frame of a street car by other passengers.

Defendant asserts that it is entitled to the total amount of plaintiffs recovery against the bus authority, minus the expenses of recovery. MCL 418.827(5); MSA 17.237(827X5). However, defendant is entitled only to that portion of the settlement which may be considered compensation for the aggravation of the existing injury. The basic premise in Overbeek v Nex, supra, was that, if the employer must pay compensation for the aggravation, he is entitled to reimbursement from the third party for what he has paid. However, if the third party caused "separate consequences * * * which admit of definite ascertainment”, Oleszek v Ford Motor Co, supra, at 323; 186 NW at 721, the employer need not pay compensation for such consequences, and thus, has no right to recover reimbursement from the third party for those consequences. Thus, in the instant case, plaintiffs settlement with the bus authority may have included a portion attributable to the damage suffered when she struck her head against the post, an injury readily distinguishable from the injury for which the employer must pay compensation.

The board applied an incorrect legal standard in its determination as to whether defendant was entitled to reimbursement for payment of compensation for aggravation of the injury. Reversed and remanded for a determination of whether and to what extent defendant is entitled to reimbursement.

       Although the Supreme Court found it unnecessary to adopt this standard in Oleszek, it is a sensible one. Assume an employee suffered a compensable back injury. He is involved in an accident in which he loses his arms, and suffers a very minor aggravation of the back injury. It would not make any sense to allow the employer to be reimbursed from the damages for loss of the arms, merely because there was an incidental minor aggravation of the back injury, where the separate damages admit of definite ascertainment.

       Distinguish the separate issues of whether defendant is entitled to reimbursement and the extent of reimbursement. If the injuries caused by the third party aggravate the prior injury and do not admit of definite ascertainment, causation is established, even if there are separate, ascertainable additional injuries. The issue then becomes, to what extent can the different injuries be ascertained and the settlement apportioned.


author:
Per Curiam.
      J. E. Townsend, J.

text:
    PEOPLE v MORILLO
    Docket No. 77-2358.
    Submitted November 8, 1978, at Detroit.
    Decided June 6, 1979.
    Leave to appeal applied for.
    Defendant, Thomas H. Morillo, Sr., was tried in Federal Court for conspiracy to transport stolen goods in interstate commerce. The trial judge dismissed the charges at the close of the government’s case for failure to prove an intention on the part of Morillo to transport the goods interstate. Defendant was then charged in the Wayne Circuit Court with receiving and concealing the same stolen property. Defendant moved to quash the complaint and warrant, arguing former jeopardy, and the court, Joseph B. Sullivan, J., denied the motion. Defendant appeals by leave granted. Held:

    Under these circumstances the prosecution in state court is not barred by double jeopardy because the case in Federal Court never went to the jury and the only determination reached was by the Federal judge that the jurisdictional element of interstate transportation of the goods had not been shown by the prosecution.
    Affirmed.
    J. E. Townsend, J., dissented. He does not believe that the Michigan Supreme Court intended to permit the exercise of dual sovereignty in every situation where Federal jurisdiction fails at trial and it can be determined by special verdict or otherwise that the jurisdictional element controlled the outcome. He would reverse.
    Opinion of the Court
    1. Constitutional Law — Criminal Law — Jeopardy.
    A defendant is placed in jeopardy once a jury is impaneled and sworn.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 175, 176.

       21 Am Jur 2d, Criminal Law §§ 185, 191.

       21 Am Jur 2d, Criminal Law § 192.

       21 Am Jur 2d, Criminal Law § 182 et seq.

      2. Constitutional Law — Double Jeopardy — Foreign Jurisdiction — State’s Interests.
    The Michigan constitution prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different; in determining whether a foreign prosecution satisfies this state’s interests, pertinent factors to consider are: (1) whether the maximum penalties of the statutes involved are greatly disparate; (2) whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interest in securing a conviction; and (3) whether the differences in the statutes are merely jurisdictional or are more substantive.
    3. Constitutional Law — Criminal Law — Double Jeopardy — Federal and State Prosecutions — Receiving and Concealing Stolen Property.
    Prosecution in Federal Court for conspiracy to transport and transporting stolen goods in interstate commerce bars a state prosecution for receiving or concealing the same goods except that the state is not barred from subsequently prosecuting where the Federal charges are dismissed at the close of the prosecution’s proofs for failure to establish the requisite nexus with interstate commerce, the jurisdictional element of the Federal offense (18 USC 371, 2314, MCL 750.535; MSA 28.803).
    Dissent by J. E. Townsend, J.
    4. Constitutional Law — Criminal Law — Double Jeopardy — Federal and State Prosecutions — Receiving and Concealing Stolen Property.

      Prosecution in a Federal Court for conspiracy to transport and transportation of stolen goods in interstate commerce bars a state prosecution for receiving and concealing the same goods even where the Federal charges are dismissed at the close of the prosecution’s proofs for failure to establish the requisite nexus with interstate commerce (18 USC 371, 2314, MCL 750.535; MSA 28.803).

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

      David N. Walsh, for defendant.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

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

   Per Curiam.

Where defendant is charged in Federal proceedings with conspiracy to transport stolen goods in interstate commerce and at the close of the government’s case in Federal court is acquitted thereof, and thereafter is charged in the state court with conspiracy to receive and conceal the identical stolen goods, does such action in the state court constitute double jeopardy? On June 24, 1977, the Wayne County Circuit Court held the state’s action was not double jeopardy, and defendant appeals of right.

In late 1975, defendant and codefendants were charged with a five-count Federal indictment for transporting and/or receiving and concealing in interstate commerce certain coils of rolled steel having a value of over $5,000, knowing the same was stolen. Trial was held in the Federal District Court for the Eastern District of Michigan before Judge Cornelia Kennedy. As the trial, unfolded, counts II, III and IV were dismissed. Count II charged defendant with conspiracy to buy and receive stolen goods while such goods were in interstate commerce in violation of 18 USC 659. Count IV charged defendant with buying and receiving such goods in violation of 18 USC 659. Count III named defendants other than Thomas Morillo. Trial continued as to counts I and V. Count I charged defendant with conspiracy in violation of 18 USC 371 to transport in interstate commerce from Dearborn, Michigan to Skokie, Illinois in May and June, 1975, three coils of hot-rolled steel weighing some 53 tons, knowing the same to be stolen in violation of 18 USC 2314. Count V charged defendant with the same offense in relation to two different coils of hot-rolled steel allegedly stolen and sold in a separate transaction on a different occasion. Upon completion of the prosecution’s case defendant moved for judgment of acquittal on counts I and V. On September 14, 1976, Judge Kennedy granted defendant’s motion on grounds that the government had failed to prove an intention on the part of defendant to transport the stolen property interstate.

In December, 1976, a three-count information was filed against defendant in the Wayne County Circuit Court. Count I charged defendant with conspiracy, MCL 750.157a(a); MSA 28.354(l)(a), to receive and conceal the same five coils of hot rolled steel as were specified in Counts I and V of the Federal indictment, contrary to MCL 750.535; MSA 28.803. Count II charged defendant with receiving and concealing, in violation of MCL 750.535; MSA 28.803, the three coils of steel mentioned in count I of the Federal proceedings and count III charged defendant with receiving and concealing the two coils of hot rolled steel listed in Count V of the Federal indictment. The defendant moved to quash the complaint and warrant, arguing former jeopardy from the Federal proceedings. When that motion was denied on June 24, 1977, the defendant sought and was granted leave to appeal to this Court.

There can be no double jeopardy unless there was prior jeopardy in the Federal proceedings. Judge Kennedy’s order of acquittal was issued after the jury was impaneled and the government had presented its proofs. The Supreme Court of the United States and the State of Michigan have ruled that a defendant is placed in jeopardy once a jury is impaneled and sworn. United States v Jorn, 400 US 470; 91 S Ct 547; 27 L Ed 2d 543 (1971), People v Gardner, 37 Mich App 520; 195 NW2d 62 (1972). However, it is also true that for jeopardy to attach, the court must be vested with competent jurisdiction. People v Powers, 272 Mich 303; 261 NW 543 (1935), Recorder’s Court Presiding Judge v Third Judicial Circuit Judge, 340 Mich 193; 65 NW2d 320 (1954). See also State v Hite, 3 Wash App 9; 472 P2d 600 (1970), cert den 403 US 933; 91 S Ct 2262; 29 L Ed 2d 712 (1971). The people initially argue that Judge Kennedy clearly ruled that jurisdiction did not lie because interstate transportation had not been shown. We disagree. This is not a case where the court never had jurisdiction. Instead, it is a case where jurisdiction (interstate commerce) was an element of the offense — an element which the government failed to prove. The lack of competent jurisdiction of the type which precludes jeopardy in the first court involves situations where the first court never had jurisdiction in the first place and never could establish it. That is not the situation in the instant case. Clearly, jeopardy attached at the Federal level. See also Sanabria v United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978).

Citing People v Cooper, 398 Mich 450; 247 NW2d 866 (1976), as authority, the people argue that even if prior jeopardy attached in the Federal court, the state is not foreclosed from prosecution where the state has a distinct and special interest to protect. Defendant also relies on Cooper, claiming that the interests of the state and the Federal government are substantially the same. Under the "dual sovereignty” doctrine as set forth in Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959), and Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959), successive prosecutions by the state and Federal governments for the same act did not constitute double jeopardy. But subsequent cases beginning with Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969), seriously eroded the doctrine. See Brant, Overruling Bartkus and Abbate: A New Standard for Double Jeopardy, 11 Washburn L J 188 (1972). In Cooper, the Michigan Supreme Court qualified the dual sovereignty doctrine holding that, unless the state’s interest is substantially different from the Federal interest, Const 1963, art 1, § 15 prohibits a state prosecution for any offense which arises out of the same criminal act for which a Federal prosecution was concluded.

"We feel that the interests of the state and the defendant are best accommodated by the approach of the Pennsylvania Supreme Court in Commonwealth v Mills, 447 Pa 163; 286 A2d 638 (1971). We perceive that approach as requiring, and we so hold, that Const 1963, art 1, § 15 prohibits á second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State of Michigan and the jurisdiction which initially prosecuted are substantially different. Analysis on a case by case basis cannot be avoided.” (Emphasis supplied.) 398 Mich 450, 460-461.

To assist lower courts in determining whether the interests of Michigan and the jurisdiction initially prosecuting the defendant are basically different, the Supreme Court suggested a three-factor approach.

"A prosecutor would be entitled to direct the attention of the court to factors which are pertinent to a determination of whether a Federal prosecution satisfies the state’s interest. Such factors for prosecutions arising out of the same criminal acts, may include whether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive. While we would prefer that our interpretation produce clear distinctions, we are comforted by our belief in the correctness of this approach, the judiciary’s ability to apply this test, and the infrequency of successive Federal and state prosecutions.” 398 Mich 450, 461.

Comparing the maximum penalties under the Federal and state statutes involved in the case before us, we note no significant disparity. Receiving or concealing stolen property over $100, MCL 750.535; MSA 28.803, carries a maximum penalty of five years imprisonment and a $2,500 fine. Conspiracy to receive or conceal carries the same maximum penalty as the substantive offense, plus a possible additional fine of $10,000, MCL 750.157a; MSA 28.354(1). Transportation of stolen goods in interstate commerce carries a maximum penalty of ten years imprisonment and a $10,000 fine, 18 USC 2314. Conspiracy to commit an offense against the United States is punishable by a maximum of five years imprisonment and a $10,-000 fine, 18 USC 371.

As to the second factor set forth in Cooper, supra, nothing suggests that the Federal authorities may not be trusted to vindicate Michigan’s interest in securing a conviction.

The sole remaining question is whether the differences between the state and Federal statutes are substantive or merely jurisdictional. As a preliminary matter, we note that the elements of a conspiracy are the same under both state and Federal law, People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974):

" 'A conspiracy is a partnership in criminal purposes’, United States v Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910). A two fold specific intent is required: a combination with others to do what is unlawful.”

It is the element of criminal purpose which is the focus of our inquiry here. We must determine whether the substantive offenses which were the object of the alleged conspiracies are substantially the same or are different.

We begin by noting that transportation of stolen goods and receiving and storing stolen goods are distinct offenses under Federal law, and that the Federal double jeopardy doctrine would not prohibit separate convictions for transporting and for receiving and storing the same stolen goods, 18 USC 2314, 2315, United States v Pearce, 275 F2d 318 (CA 7, 1960). See also Turley v Wyrick, 554 F2d 840 (CA 8, 1977), cert den 434 US 1033; 98 S Ct 765; 54 L Ed 2d 780 (1978). Under Michigan double jeopardy law, however, a defendant could not be convicted in a state court of both receiving and transporting the same property unless the two offenses constituted separate transactions; where the goods are received for purposes of transportation, the receiving would be a lesser included . offense of the offense of transporting the goods. See People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). Thus prosecution for both transporting and receiving or concealing would constitute double jeopardy if only Michigan statutes were involved. We are not concerned here, however, with a situation involving two Michigan prosecutions or convictions for the same conduct, but with successive Federal and state prosecutions. The applicable rule is not that set out in Martin and Stewart, but that enunciated in People v Cooper, supra.

Continuing our analysis under Cooper, we note that the Federal offense of transporting stolen goods in interstate commerce and the state offense of receiving or concealing stolen property share several elements. First, the property in question must be stolen, and the defendant must know that it is stolen; second, the defendant must intend to transport (in the case of § 2314) or to receive and conceal (in the case of MCL 750.535). The Federal offense does contain one element which the state offense does not: the requirement that the stolen goods move in interstate commerce, see United States v Rogers, 475 F2d 821 (CA 7, 1973). The state offense requires no transportation of the goods at all. In view of the stated congressional intent in passing § 2314 — that is, to prevent lawbreakers from escaping punishment by transporting stolen property out of the state where it is stolen — it seems clear that the nexus with interstate commerce is a purely jurisdictional requirement. Thus the differences between the two statutes for our purposes appear to be merely jurisdictional and not substantive.

Our application of the test set out in People v Cooper, supra, leads us to conclude that, under ordinary circumstances, prosecution in a Federal court on charges of conspiracy to transport and transporting stolen goods in interstate commerce would bar subsequent prosecution in a state court for receiving or concealing the same stolen goods. Had the Federal prosecution proceeded to a general verdict of guilty or not guilty, we would not hesitate to find the state prosecution barred by the double jeopardy clause of the Michigan Constitution, Const 1963, art 1, § 15, People v Cooper, supra.

The case at bar, however, presents an extraordinary situation. In this case, unlike Cooper, the case never went to the jury. Instead, it was dismissed by the trial judge at the close of the prosecution’s proofs, solely on grounds that the government had failed to establish the requisite nexus with interstate commerce. It is thus apparent that the only issue decided in the Federal prosecution was the only issue which need not be proven in a state prosecution: the element necessary to establish Federal jurisdiction. Thus the government’s proofs on the substantive elements which the Federal and state offenses share were never tested either by the court or by the jury. Under these circumstances, we conclude that the Federal prosecution failed to satisfy the state’s interest, cf. State v West, 260 NW2d 215 (SD, 1977).

The result we reach is not inconsistent with People v Cooper, supra, and in our opinion comports with the intent of the Supreme Court’s decision in Cooper. The Court in Cooper sought to accommodate the interests of the state in punishing the guilty and the interests of defendants in not being subjected to two prosecutions for the same conduct. They accomplished this result by prohibiting a state prosecution when the state’s interests had previously been vindicated in a Federal prosecution. In the peculiar circumstances presented by the case before us, it is clear that the state’s interests were not vindicated by the Federal prosecution.

Prosecution of defendant for conspiracy to receive or conceal stolen property and for the two separate acts of receiving or concealing is not barred on double jeopardy grounds under People v Cooper, supra. The ruling of the trial court is affirmed.

J. E. Townsend, J.

(dissenting). I dissent.

The judgment of acquittal was entered after the jury was sworn in and the government had presented its proofs in a case where the court had jurisdiction of the person and of the subject matter.

Clearly, "jeopardy” attached and any appeal or retrial in Federal court would be precluded by the constitutional protection against double jeopardy. Sanabria v United States, 437 US 54, 65-69; 98 S Ct 2170; L Ed 2d 43 (1978), United States v Jorn, 400 US 470; 91 S Ct 547; 27 L Ed 2d 543 (1971).

The judgment of acquittal was based upon failure to prove the fact of "intent to transport” in interstate commerce. A number of states which have double jeopardy statutes classify such elements as a "jurisdictional” element, which is not determinative of "double jeopardy” issues. State v West, 260 NW2d 215, 222-223 (SD, 1977), and cases from other states cited therein.

The Michigan Supreme Court in the case of People v Cooper, 398 Mich 450; 247 NW2d 866 (1976) speaking through Justice Lindemer, appears to adopt such rule on page 461 by stating as one factor important to deciding whether Federal prosecution satisfies the state’s interest, "whether the differences in the statutes are merely jurisdictional or are more substantive”.

My colleagues and I agree that the statutory differences in this case are merely jurisdictional.

If, in fact, the differences are merely jurisdictional, I conclude that an attempt to try defendant in a state court is a retrial of the same substantive offense and constitutes double jeopardy based upon the tests and reasoning approved in People v Cooper.

The acquittal of defendant by Judge Kennedy decided the issue of defendant’s guilt or innocence.

I do not believe that the Michigan Supreme Court intended to permit the exercise of dual sovereignty in every situation where Federal jurisdiction fails at trial and it can be determined by special verdict or otherwise that the jurisdictional element controlled the outcome of the trial on the merits.

I would reverse.

       "Further, there is a complete absence of evidence that it was ever to be transported in interstate commerce. The only interstate nexus with this steel is the fact that the evidence showed it was purchased by a concern or individual in Skokie, Illinois.
      "Further, we have the testimony, in this case, of the co-conspirators as to each Count and nowhere, in the testimony of the co-conspirators in Count One or the testimony of the co-conspirators in Count Two, was there any testimony that the parties intended that the steel should be moved — transported, rather, in interstate commerce or caused to be transported in interstate commerce.
      "Further, although the Congress could make it a Federal crime to sell stolen goods in interstate commerce, it has not chosen to do so; but has required transportation and the Court cannot construe transportation to include sale.
      "For these reasons, the Court believes that it must grant the defendant’s motion for judgment of acquittal on the charges in the— remaining charges in the indictment.” Judge Kennedy’s opinion, pp 3, 4, 5-6.

       Most recently, in what is known as "The Double Jeopardy Cases”, the United States Supreme Court has reaffirmed the ruling that jeopardy attaches when the jury is impaneled and sworn. In so ruling, the Court struck down a Montana statute providing that jeopardy would not attach until the first witness was sworn. Crist v Bretz, 437 US 28; 98 S Ct 2156; 57 L Ed 2d 24 (1978).

       We note that no double jeopardy problem is created by the two receiving or concealing counts, because the counts charge two separate transactions on different occasions involving different stolen goods.

       See United States v Sheridan, 329 US 379, 384; 67 S Ct 332; 91 L Ed 359 (1946):
      "Congress had in mind preventing further frauds or the completion of frauds partially executed. But it also contemplated coming to the aid of the states in detecting and punishing criminals whose offenses are complete under state law, but who utilize the channels of interstate commerce to make a successful getaway and thus make the state’s detecting and punitive processes impotent.”

      "10 See H. Rep. 2528, 70th Cong., 2d Sess., 2: 'Most of the States have laws covering the underlying principle of this proposed legislation, but it must be remembered that the jurisdiction of the State court does not reach into all of the States, especially when the matter of producing witnesses and bringing to court the proof is concerned.’ See also Hearings before the Committee on the Judiciary on H. R. 10287, supra note 8, passim.”

      See also United States v Stearns, 550 F2d 1167 (CA 9, 1977), State v West, 260 NW2d 215 (SD, 1977).