author: D. C. Riley, J. N. J. Kaufman, P.J.

text:
    PEOPLE v WILLIAMS
    Docket No. 77-3327.
    Submitted August 31, 1978, at Detroit.
    Decided October 5, 1978.
    Randall B. Williams was convicted of manslaughter, Recorder’s Court of Detroit, Patricia J. Boyle, J. Defendant appealed, alleging error in the admission of evidence of a prior misdemeanor conviction to refute the defendant’s testimony that he had never been convicted of any offense, the admission of a written statement of the defendant inconsistent with his testimony, the court’s instructions to the jury, and the failure to grant a mistrial when the prosecutor requested, during trial, that the defendant be fingerprinted. Held:

    1. The use of the misdemeanor conviction to impeach the defendant would ordinarily be improper, but in this case it was used for the specific purpose of negating the defendant’s false testimony regarding prior convictions and defense counsel’s statement that the defendant had an "unblemished record”. The evidence was properly admitted.
    2. A proper foundation was laid for admission of the prior inconsistent statement, and its admission was proper.
    3. The jury instruction complained of was not objected to, and no manifest injustice resulted.
    4. Failure to grant a mistrial was not error where no showing of prejudice to the defendant was made.
    Affirmed.
    N. J. Kaufman, P.J., concurred separately to express his agreement with the majority that the evidence of the defendant’s prior misdemeanor conviction was properly admitted to negate the testimony of the defendant, which was false and, therefore, perjury.
    References for Points in Headnotes
    [1, 5] 81 Am Jur 2d, Witnesses §§ 480, 571-586.
    [2] 81 Am Jur 2d, Witnesses § 596 et seq.

    [3] 58 Am Jur 2d, New Trial § 128.
    [4] 58 Am Jur 2d, New Trial §§ 29, 31, 33-41.

      Opinion of the Court
    1. Criminal Law — Evidence — Prior Convictions — Misdemeanors — Perjury.
    Introduction into evidence of the fact that a defendant had previously been convicted of a misdemeanor, ordinarily inadmissible for purposes of impeachment of a defendant, is proper where the defendant has asserted that he has no prior convictions and the evidence is offered specifically to negate the defendant’s false testimony.
    2. Criminal Law — Evidence — Prior Inconsistent Statements — Foundation.
    The guidelines for properly laying a foundation for introduction into evidence of a witness’s prior written statement which is inconsistent with his testimony are: the witness is to be shown the document, and asked whether he made the alleged statement, giving its substance and naming the time, the place and the person to whom the statement was made; if the witness denies making the statement or indicates a lack of knowledge of the statement, a proper foundation has been laid for the cross-examiner to prove the making of the statement.
    3. Criminal Law — Instructions to Jury — Miscarriage of Justice.
    Reversal of a defendant’s conviction on the basis of an allegedly erroneous jury instruction which was not objected to at trial is not warranted in the absence of a miscarriage of justice.
    4. Criminal Law — Mistrial — New Trial — Prejudice.
    The granting of a mistrial or a new trial is justified only where it is clearly established that an irregularity in a trial resulted in prejudice sufficient to deprive the defendant of a fair and impartial trial.
    Concurrence by N. J. Kaufman, P.J.
    5. Criminal Law — Evidence — Prior Convictions — Misdemeanors — Perjury.

      Evidence of a defendant’s prior misdemeanor conviction was admissible for the purpose of negating the defendant’s false testimony that he had no previous convictions.

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

      Matthew R. Rumora, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   D. C. Riley, J.

On February 4, 1977, defendant was convicted by a jury of manslaughter, MCL 750.321; MSA 28.553, and sentenced to a prison term of 5 to 15 years.

He assigns as error four trial court rulings, of which the most significant pertains to an admission of a prior misdemeanor conviction for impeachment purposes. In his opening statement, defense counsel stated his client had "an unblemished record”. On direct examination defendant testified that he had never been convicted of any offense, and on cross-examination he again denied any convictions. Subsequently, the prosecution produced a witness, officer Robert Black, who testified that defendant had previously been convicted of the misdemeanor of larceny under $100, MCL 750.356; MSA 28.588. Defendant argues that allowing the misdemeanor conviction into evidence directly contravenes People v Renno, 392 Mich 45; 219 NW2d 422 (1974). Renno held that prior municipal ordinance or misdemeanor convictions are inadmissible at trial if intended solely for impeachment purposes. Defendant Renno, on direct examination, testified that he had previously been convicted of certain drunk and disorderly charges. On cross-examination the prosecutor repeatedly attempted to expose the underlying factual circumstances behind those charges. In construing two statutes bearing on the propriety of impeaching a witness by prior conviction, the Court declared that:

"The original legislative purpose behind these statutes is obvious. They were passed to allow persons, historically disqualified at common law from testifying in a case, to testify. A compromise, however, was worked out whereby these disqualified persons could still have their credibility attacked by those prior convictions which formerly had disqualiñed them from testifying.
"Not all crimes at common law disqualified a witness. Only infamous crimes disqualified a witness, and our statutes were originally intended only to allow impeachment by use of that type of criminal conviction.
"Defendant in this case was impeached by the prosecutor’s use of his prior municipal ordinance violations and convictions. As set forth in [People v] Hanrahan, supra, [75 Mich 611, 620-621; 42 NW 1124 (1889)], and [Ex parte] Wilson, supra, [114 US 417; 5 S Ct 935; 29 L Ed 89 (1885)] these are not the type of crimes which historically would have disqualified a witness from testifying. Our Legislature saw fit to pass these statutes and to confer upon the accused a right he previously did not have at common law, that of testifying on his own behalf. The Legislature also saw fit to limit this right, permitting the defendant’s credibility to be attacked in the discretion of the trial court by these prior disqualifying convictions. These statutes were passed to give rights to an accused defendant, not to take rights away - from him. Allowing the use of municipal ordinance convictions for impeachment purposes does just that—it takes away rights the accused formerly had at common law.” (Emphasis in original.) Renno, supra, at 53, 55.

Thus, it is apparent from the above excerpt that the Renno Court was concerned primarily with the general "bad character” of the witness as it pertained to his ability to testify before a jury in a credible manner. The witness was allowed to take the stand, but, at the same time, the jury was permitted to evaluate his communicative reliability through the admission of crimes serious enough (i.e., infamous crimes) to warrant certain inferences as to his overall character.

We deal here with a dissimilar situation, namely, the correction of false and perjured testimony. The misdemeanor conviction was not offered for the purpose mentioned in Renno, but rather to negate defendant’s express contention on direct examination that he was never before convicted.

Although no Michigan cases deal with this exact issue, reference to other analogous decisions is instructive. In People v Bouchee, 62 Mich App 132; 233 NW2d 503 (1975), rev’d on other grounds, 400 Mich 253; 253 NW2d 626 (1977), defense counsel in his opening statement vouched for the defendant’s nonexistent criminal record; defendant further testified as much on direct examination, whereupon the prosecution introduced evidence of a prior military conviction which was defective for lack of counsel. See Loper v Beto, 405 US 473, 480; 92 S Ct 1014; 31 L Ed 2d 374 (1972). The Bouchee Court determined that reference to the prior conviction was not permitted for the general purpose of denigrating defendant’s character, but rather was admissible for the special and narrow purpose of demonstrating that defendant had given false testimony on direct examination.

"We believe that the record reflects that the defendant offered false testimony and that the prosecutor was allowed to show that defendant misrepresented his record in an attempt to mislead the jury. The defendant’s testimony opened the door to rebuttal testimony, or what McCormick calls 'fighting fire with fire’. MeCormick, Evidence (2d ed), § 57, pp 131, 132.” Bouchee, supra, at 136.

See People v Jackson, 77 Mich App 392; 258 NW2d 89 (1977), People v Eroh, 47 Mich App 669; 209 NW2d 832 (1973). Cf., People v Bobo, 390 Mich 355; 212 NW2d 190 (1973).

While Bouchee did not reach the question of prior misdemeanor convictions, its reasoning touches the present case. For the trial court to have excluded the prior larceny conviction would allow the defendant to hide behind the purportedly expansive shield of Renno, thereby granting him free license to commit perjury and mislead the jury. This we cannot sanction, nor do we feel the Renno Court intended such a dubious result.

The United States Supreme Court in Harris v New York, 401 US 222, 225-226; 91 S Ct 643; 28 L Ed 2d 1 (1971), addressed an analogous issue concerning the use for impeachment of an otherwise inadmissible confession which violated Miranda v Arizona:

"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. * * * Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. * * *
"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” (Citations omitted.)

Our Supreme Court in People v Graham, 386 Mich 452; 192 NW2d 255 (1971), adopted the Harris rationale in affirming a conviction where the defendant had been impeached by evidence of his prior silence during a police interrogation. At trial he testified on direct examination that he repeatedly tried to inform the police what had happened. The Court cautioned, however, that the "defendant’s refusal to speak during interrogation is admissible only to impeach his own inconsistent statements at trial”. Graham, supra at 458.

These decisions illustrate that when a defendant seeks to controvert the truth-seeking functions of a criminal trial, the introduction of otherwise inadmissible evidence is permissible to contradict his false testimony. Accordingly, we hold that since the introduction of the prior misdemeanor conviction in the present case was not used to show the defendant’s bad character, but was rather used specifically to negate his fraudulent testimony, and the jury was so instructed, its introduction was not reversible error.

The remaining issues on appeal may be disposed of more readily. First, the prosecution in rebuttal introduced a prior written statement of the defendant contrary to his previous in-court testimony. Defendant argues that no proper foundation was laid for its introduction.

People v Dozier, 22 Mich App 528, 531-532; 177 NW2d 694 (1970), enunciated the following guidelines:

" 'To satisfy the requirement the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place and the person to whom made. The purpose of this particularity is, of course, to refresh the memory of the witness as to the supposed statement by reminding him of the accompanying circumstances.
" 'If the witness denies the making of the statement, or fails to admit it, but says "I don’t know” or "I don’t remember” then the requirement of "laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.’ McCormick, Handbook of the Law of Evidence (1954), § 37, p 68.”

Further, when impeaching by a witness’s prior inconsistent statement, the witness must be shown the document. People v Martin, 75 Mich App 6, 16; 254 NW2d 628 (1977). A perusal of the record convinces us these requirements were complied with in the instant case. Whether the defendant fully denied or failed to admit the statement is the subject of equivocal and contradictory testimony. The trial court determined the thrust of the defendant’s testimony was that the entire statement was either untrue or that he did not recall having made the statement. Since we cannot say we might have reached a different result there is no showing of an abuse of discretion.

Defendant also asserts the trial court’s instruction on self-defense was improper. Counsel did not object at trial to the self-defense charge, therefore, absent a miscarriage of justice, reversal is not warranted. MCL 769.26; MSA 28.1096, GCR 1963, 516.2, People v Trammell, 70 Mich App 351; 247 NW2d 311 (1976), People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972). We cannot say that manifest injustice occurred. Although irregular in part, the instruction fairly informed the jury as to the applicable law on self-defense.

Finally, defendant argues the trial court erred in failing to grant a motion for mistrial after the prosecutor had requested, in the presence of the jury, that the defendant be fingerprinted. Not every irregularity in a trial justifies the granting of a mistrial or new trial but only where it is clearly established that the error resulted in prejudice sufficient to deprive the defendant of a fair and impartial trial. People v Nick, 360 Mich 219; 103 NW2d 435 (1960), People v Watson, 307 Mich 596; 12 NW2d 476 (1943), cert den, 323 US 749; 65 S Ct 81; 89 L Ed 600 (1944). No actual showing of prejudice was made here. The lower court’s instructions that the prosecution’s testimony was not evidence and that any reference to fingerprinting should be disregarded served further to eliminate any possible bias. People v Boxx, 16 Mich App 724; 168 NW2d 628 (1969).

Affirmed.

R. M. Maher, J., concurred.

N. J. Kaufman, P.J.

(concurring). I concur separately for the simple reason that I cannot find anything wrong with the well-written opinion of Judge Riley.

My difficulty is that I do not know why defense counsel stated that defendant had an unblemished record. If I were to guess I would say he did it because he knew of People v Renno, 392 Mich 45; 219 NW2d 422 (1974), and knew that if his client took the witness stand he could not be questioned in regard to misdemeanor or ordinance violations.

I also do not know why the defendant answered the prosecutor’s question as to previous convictions by stating that he had never been convicted of any offense. It could have been for two reasons: (1) that he heard his counsel say he had an unblemished record and (2) that his counsel had already told him he could not be questioned as to misdemeanor and/or ordinance convictions.

Nevertheless, it was perjury. Therefore, I affirm.

       384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STACHOWIAK v SUBCZYNSKI
    Docket No. 78-849.
    Submitted April 3, 1979, at Detroit.
    Decided September 10, 1979.
    Elizabeth Stachowiak and Paul Stachowiak brought a medical malpractice action against Janusz Subczynski, M.D. Judgment for defendant, Wayne Circuit Court, Patrick J. Duggan, J. Plaintiffs appeal alleging 1) that the trial court erred in admitting into evidence certain exhibits introduced by the defendant and 2) that the trial court erred in denying their motion for a mistrial which they made because of certain allegedly improper arguments of defense counsel in his closing arguments to the jury. Held:

    1. The admission at trial of statements contained in learned treatises is not proper for purposes other than impeachment. Because the objected-to exhibits were excerpts from a learned treatise, the lower court erred in permitting their introduction at trial as part of the defendant’s case in chief. This error was not harmless.
    2. The comments of defense counsel in his closing arguments to the jury, wherein he intimated that the testimony of the plaintiffs’ expert had been bought and listed several pieces of evidence that had been excluded from evidence at trial, were improper.
    Reversed and remanded.
    1. Evidence — Learned Treatises — Impeachment — Substantive Evidence — Rules of Evidence.
    Learned treatises are admissible for impeachment purposes but are not admissible as substantive evidence (MRE 707).
    2. Trial — Arguments of Counsel — Improper Arguments.
    It was improper for a defendant’s attorney, in his closing argument before the jury, to intimate that testimony of the plaintiff’s expert witness had been "bought” and to state that the defendant had additional evidence in support of his position, but that the rules of evidence prohibited the introduction of the evidence that would lead to an understanding of the truth and, subsequently, to list for the jury several pieces of evidence which had been excluded.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 888.
    [2] 75 Am Jur 2d, Trial §§ 193, 194.

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

      Sullivan, Ranger, Ward & Bone, for defendant.
    Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

Plaintiffs-appellants appeal of right a December 29, 1977, jury verdict of no cause of action in this medical malpractice suit. We reverse.

Plaintiffs first complain that the trial court erred in admitting into evidence certain exhibits of the defendant. The four objected-to exhibits consisted of medical charts that were drawn from information obtained from a medical treatise. This information was offered to support the defendant doctor’s claim that he acted in accordance with the requisite standard of care when he chose one method of treatment for plaintiff Elizabeth Stachowiak over another.

Both the applicable Michigan rulé of evidence, MRE 707, and the Supreme Court’s interpretation of that rule, see Bivens v Detroit Osteopathic Hospital, 403 Mich 820 (1978), preclude the admission at trial of statements contained in learned treatises for purposes other than impeachment. Because the objected-to exhibits were excerpts from a learned treatise, the lower court erred in permitting their introduction at trial as part of defendant’s case in chief. Because we cannot say that this error was harmless, we must reverse.

Plaintiffs also argue that the lower court erred in denying their motion for a mistrial which they made because of certain allegedly improper arguments of defense counsel in his closing to the jury. In his closing argument defendant’s counsel intimated that testimony of plaintiffs’ expert had been "bought” and indicated that, although defendant had additional evidence that would have supported his position, "[r]egrettably, some of our rules of evidence prohibit introduction of the kinds of things that would, in my judgment, at least, lead to some complete understanding of the truth in a case”. After making this latter comment, defense counsel listed several pieces of evidence that had been excluded at trial.

Because of our disposition of the first issue in this appeal, we need not decide whether the merits of this issue require reversal. However, we note that these comments by defense counsel were improper and we trust that they will not be made again on retrial.

Reversed and remanded. Plaintiffs may assess costs.


text:
    SALISBURY v McLOUTH STEEL CORPORATION
    Docket No. 78-1650.
    Submitted June 12, 1979, at Detroit.
    Decided October 5, 1979.
    Plaintiff Tracy E. Salisbury was terminated from his job with defendant McLouth Steel Corporation on January 14, 1974. Plaintiff filed suit in the United States District Court for the Eastern District of Michigan, alleging a violation of the Federal Age Discrimination in Employment Act. That case was dismissed on May 2,1974.
    Plaintiff then filed a complaint with the Michigan Civil Rights Commission. That complaint was dismissed on March 13, 1975. On March 17, 1977, the plaintiff brought an action against the defendant in Wayne Circuit Court, alleging age discrimination and breach of an oral employment contract. The circuit court, Thomas J. Foley, J., granted the defendant’s motion for a summary judgment, holding that the plaintiffs claim of age discrimination was barred by the statute of limitations and that, as to the contract claim, plaintiff failed to state a claim upon which relief could be granted. Plaintiff appeals, alleging that 1) his cause of action did not accrue until the date upon which he last received income from the defendant, 2) his discharge constituted a breach of an oral contract, and 3) summary judgment was inappropriate because there were material issues of fact. Held:

    1. Plaintiffs claim accrued on the date he was discharged. The fact that he may have subsequently received vacation or severance pay is irrelevant. The claim was barred by the running of the limitations period.
    2. A contract for "permanent employment” or "employment for life” is terminable at the will of either party absent some distinguishing features or provisions or a consideration in addition to the services to be rendered. Plaintiff has failed to allege any feature which would distinguish this contract from one terminable at will.

      References for Points in Headnotes
    [1] 53 Am Jur 2d, Master and Servant §§ 60, 80, 81.
    Construction and effect of severance or dismissal pay provisions of employment contract or collective labor agreement. 40 ALR2d 1044.
    [2] 53 Am Jur 2d, Master and Servant §§ 32, 33.
    Validity and duration of contract purporting to be for permanent employment. 60 ALR3d 226.
    [3] 73 Am Jur 2d, Summary Judgment § 26.

      3. The existence of genuine issues of material fact has no applicability to summary judgment for failure to state a claim upon which relief can be granted.
    Affirmed.
    1. Master and Servant — Employment Contracts — Breach op Contract — Cause op Action.
    A cause of action arising out of the discharge of a plaintiff resulting in an alleged breach of an employment contract accrues on the date of the plaintiff’s discharge and the fact that the plaintiff may have subsequently received vacation or severance pay from the defendant is irrelevant.
    2. Master and Servant — Employment Contracts — Termination.
    Contracts for permanent or life employment are considered indefinite hirings which, absent distinguishing features or consideration in addition to the services to be rendered, are terminable at the will of either party.
    3. Judgment — Summary Judgment — Material Facts — Failure to State Claim — Court Rules.
    A genuine issue of material fact precludes the granting of summary judgment which is sought on the ground that there is no genuine issue as to any material fact but does not preclude summary judgment sought on the ground that the opposing party has failed to state a claim upon which relief can be granted (GCR 1963, 117.2[1][3]).

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

      Dickinson, Wright, McLean, Cudlip & Moon (by John Corbett OMeara, Henry W. Saad and Steven C. Nadeau), for defendant.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   Per Curiam.

Plaintiff appeals a decision for the Wayne County Circuit Court granting summary judgment to defendant.

Plaintiff was terminated from his job by defendant on January 14, 1974. Plaintiff filed suit in the United States District Court for the Eastern District of Michigan, alleging a violation of the Federal Age Discrimination in Employment Act. That case was dismissed on May 2, 1974.

Plaintiff then filed a complaint with the Michigan Civil Rights Commission. That complaint was dismissed on March 13, 1975. The instant suit, alleging age discrimination and breach of an oral employment contract, was commenced on March 17, 1977.

The trial court held that plaintiff’s claim of age discrimination was barred by the three-year statute of limitations, MCL 600.5805(7); MSA 27A.5805(7). In addition, the court ruled that as to the contract claim plaintiff failed to state a claim upon which relief could be granted.

Plaintiff concedes that the three-year statute of limitations is applicable to the age discrimination claims but contends that his cause of action did not accrue until February 14, 1974, the date upon which he last received income from defendant.

Plaintiff’s cause of action accrued on the date he was discharged, January 14, 1974. Olson v Rembrandt Printing Co, 511 F2d 1228 (CA 8, 1975), Prophet v Armco Steel, Inc, 575 F2d 579 (CA 5, 1978). It is the discharge itself which is alleged to be wrongful. Hence, the cause of action accrued on that date and the fact that plaintiff may have subsequently received vacation or severance pay from defendant is irrelevant.

Because of the above determination we need not address plaintiff’s contention that the statute was tolled while the Federal suit was pending. Even assuming it was tolled, plaintiff’s current complaint was not timely filed.

Plaintiff also argued that his discharge constituted a breach of an oral employment contract. The trial court properly ruled that plaintiff failed to state a claim upon which relief could be granted. A contract for "permanent employment” or "employment for life” is terminable at the will of either party absent some distinguishing features or provisions or a consideration in addition to the services to be rendered. Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937), Adolph v Cookware Co of America, 283 Mich 561; 278 NW 687 (1938), Milligan v The Union Corp, 87 Mich App 179; 274 NW2d 10 (1978). Plaintiff has failed to allege any feature which would distinguish this contract from one terminable at will.

Plaintiff’s claim that summary judgment was inappropriate because there were material issues of fact reflects an inaccurate understanding of the basis for summary judgment in this case. The court granted summary judgment under GCR 1963, 117.2(1), for failure to state a claim upon which relief could be granted. A material issue of fact precludes summary judgment when the motion is made under GCR 1963, 117.2(3). That is not the situation here.

Affirmed. Costs to appellee.


text:
    KOOPMAN v LOGAN
    Docket Nos. 78-1685, 78-1686.
    Submitted June 5, 1979, at Grand Rapids.
    Decided October 5, 1979.
    Janet Koopman was seriously injured and Peggy Tuesink was killed in an automobile accident. Janet Koopman and Ernest L. Tuesink, administrator of Peggy’s estate, brought actions in Allegan Circuit Court against Patricia L. Logan, owner of one of the automobiles involved in the accident. Two default judgments in the amount of $100,000 each were entered against defendant Logan, George R. Corsiglia, J. The plaintiffs sought to recover from Logan’s insurance carrier, Allstate Insurance Company, the amount of the judgments. Allstate denied coverage on the basis of cancellation of Logan’s insurance for nonpayment of premium, stating that notice of cancellation had been sent to the defendant. The two actions against Allstate were consolidated for trial. Judgments for defendant Allstate. Plaintiffs appeal, alleging that the trial court erred by instructing the jury that the mailing of notice of cancellation is prima facie notice which resulted in a presumption which shifted the burden of proof in violation of the Michigan Rules of Evidence, that the court erred in refusing to instruct the jury that Allstate was required to send the notice of cancellation by certified mail and that the presumption of notice, where it is sent by postage prepaid to the last known address, does not arise where the insurer knows that the insured’s last known address is no longer current. Allstate Insurance Company cross-appealed. Held:

    1. A jury instruction that the mailing of an insurance cancellation notice to an insured is prima facie notice of cancellation does not shift the ultimate burden of proof or persuasion in violation of the Michigan Rules of Evidence because the overall burden of proof, in an action to avoid cancellation, remains as originally cast.
    2. The mailing of notice of cancellation for nonpayment of premiums by an insurer to the insured with postage fully prepaid is sufficient notice; therefore, refusing to instruct a jury that the insurance company was required to send notice of cancellation by certified mail does not constitute error.

      References for Points in Headnotes
    [1, 4] 29 Am Jur 2d, Evidence §§ 193, 194.
    [2] 29 Am Jur 2d, Evidence § 159.
    [3] 29 Am Jur 2d, Evidence § 124.
    [5] 29 Am Jur 2d, Evidence § 196.

      3. A presumption of notice of cancellation of insurance coverage arises when the insurer fulfills the requirement of mailing the notice of cancellation to the insured’s last known address; evidence that the address is not current, as tending to show the lack of receipt of the notice, is admissible to rebut the presumption.
    Affirmed.
    1. Insurance — Automobiles — Cancellation ■— Notice of Cancellation — Presumptions — Evidence — Statutes.
    Prima facie proof that notice of cancellation of an automobile insurance policy was received by the insured is made where the insurer establishes that the notice of cancellation was mailed; the insurer is entitled to rely on this presumption until it is rebutted by competent evidence (MCL 500.3020; MSA 24.13020).
    2. Evidence — Presumptions — Statutory Presumptions — Common-Law Presumptions — Rebuttal — Burden of Proof — Evidence.
    Generally, there has been no distinction drawn between jury instructions applicable to statutory presumptions and those applicable to common-law presumptions; therefore, in the absence of any language in a statute indicating that a presumption is to be dealt with in a special way, the Michigan Rules of Evidence apply and provide for going forth with evidence to rebut or meet a presumption and for the overall burden of proof in the case (MRE 301).
    3. Insurance — Notice op Cancellation — Burden of Proof — Evidence.
    A jury instruction that the mailing of an insurance cancellation notice to the insured is prima facie notice of cancellation does not shift the ultimate burden of proof or persuasion in violation of the Michigan Rules of Evidence because the overall burden of proof, in an action to avoid cancellation, remains as originally cast (MRE 301).
    4. Insurance — Notice of Cancellation — Certified Mail — Statutes.
    An insured’s mailing of notice of cancellation for nonpayment of premiums to an insured with postage fully prepaid is sufficient notice of cancellation; therefore, refusing to instruct a jury that the insurance company was required to send notice of cancellation by certified mail does not constitute error (MCL 500.3020; MSA 24.13020).
    5. Insurance — Notice of Cancellation — Mailing — Last Known Address — Presumptions — Statutes.
    A presumption of receipt of notice of cancellation of insurance coverage arises when the insurer fulfills the requirement of mailing, with postage fully prepaid, the notice of cancellation to the insured’s last known address; evidence that the address is not current, as tending to show the lack of receipt of the notice, is admissible to rebut the presumption (MCL 500.3020; MSA 24.13020).

      Cholette, Perkins & Buchanan (by Robert A. Benson), for plaintiffs.

      Hillman, Baxter & Hammond (by Joel M. Boy-den and Phillip J. Nelson), for Allstate Insurance Company.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and B. D. Burdick, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

This action arose out of an automobile accident occurring on December 24, 1974, in which plaintiff Tuesink’s decedent was killed and plaintiff Koopman was seriously injured. Two default judgments in the amount of $100,000 each were taken against defendant Patricia Logan, the owner of one of the automobiles involved in the accident. Plaintiffs sought to recover from Allstate Insurance Company, Logan’s insurer, for the amount of the two judgments. Allstate denied that it had provided insurance coverage for defendant Logan’s vehicle at the time of the accident. Plaintiffs appeal a judgment in favor of defendant Allstate Insurance Company resulting from a jury verdict of no cause for action in favor of defendant Allstate.

On appeal, plaintiffs argue that the trial court erroneously cast the burden of nonpersuasion on the plaintiffs by instructing the jury on the effect of the statutory presumption contained in MCL 500.3020; MSA 24.13020. Plaintiffs argue that the instruction given by the trial court shifted the burden of proof in violation of MRE 301.

MCL 500.3020; MSA 24.13020 provides that the mailing of a notice of cancellation of an insurance policy shall be prima facie proof of notice. This language denotes a rebuttable presumption of receipt of the notice from proof of the mailing. Raptis v Safeguard Ins Co, 13 Mich App 193, 199; 163 NW2d 835 (1968). Generally, there has been no distinction drawn between jury instructions applicable to statutory presumptions, and those applicable to common-law presumptions. In re Wood Estate, 374 Mich 278, 293; 132 NW2d 35 (1965). Therefore, in the absence of any language in the statute indicating that this presumption is to be dealt with in a special way, this Court agrees with the plaintiff that MRE 301, which covers the operation of presumptions in civil cases, applies in this case.

This Court disagrees, however, with plaintiffs’ contention that the instruction given by the trial court did not comport with MRE 301. This Court approved the substance of the trial court’s instruction, in a case involving the evidentiary effect of this presumption, in Good v DAIIE, 67 Mich App 270, 276-277; 241 NW2d 71 (1976). Subsequently, in Kar v Hogan, 399 Mich 529, 538-542; 251 NW2d 77 (1976), the Court clearly indicated that an instruction of this type does not shift the burden of proof in the sense of the risk of nonpersuasion, which remains, as originally cast, on the plaintiff. Accordingly, we hold that the trial court’s instruction on the effect of this presumption did not shift the burden of proof in violation of MRE 301.

Plaintiffs’ next argument, that the trial court erred in refusing to instruct the jury that the insurance company was required to send the notice of cancellation for nonpayment of premium by certified mail, is without merit. The certified mail requirement contained in MCL 500.3224; MSA 24.13224 is specifically made nonapplicable in cases such as this one, in which the cancellation is based on nonpayment of premiums, by MCL 500.3212; MSA 24.13212. The applicable statute in this case is MCL 500.3020; MSA 24.13020, which provides only that the mailing of notice of cancellation, by the insurer to the insured, be with postage fully prepaid.

Plaintiffs finally argue that the presumption created in MCL 500.3020; MSA 24.13020 does not arise when the insured’s last known address may be known to the insurer to be no longer current. This Court rejects plaintiffs’ argument because the statute clearly indicates that the presumption arises when the insurer fulfills the requirement of mailing the notice of cancellation to the insured’s last known address. Evidence that the address was not current, as tending to show the lack of receipt of the notice, is properly admissible in rebuttal to the presumption.

The decision of this Court makes it unnecessary to address this issue raised in the cross-appeal filed by defendant Allstate Insurance Company.

Affirmed.


text:
    BOWER v WHITEHALL LEATHER COMPANY
    Docket No. 78-5290.
    Submitted May 2, 1979, at Grand Rapids.
    Decided October 10, 1979.
    Leave to appeal applied for.
    Ferrell Bower, a long time management employee of Whitehall Leather Company, suffered various industrial injuries to his left knee. As a result of the recurring injuries, Bower had several absences from work. With each recuperation he returned to his employment. During a union strike at Whitehall, in 1974, Bower’s left knee began bothering him again when management employees performed regular labor jobs. In July, 1974, Bower moved to Florida and subsequently obtained employment with a jewelry retailer as a floor guard. Bower petitioned for continuing weekly worker’s disability benefits for the differential between his Florida earnings and his earnings at Whitehall Leather. Prior to the hearing on the claim, Bower was examined at Whitehall’s request in order to determine if he was capable of returning to work. As a result of the doctor’s examination, Bower was given, at the hearing, a return to work offer. The offer was refused by Bower. An administrative law judge awarded Bower continuing differential benefits. Whitehall appealed to the Worker’s Compensation Appeal Board. The board made specific findings that Bower remained disabled from general, common labor, that Whitehall’s offer of favored employment was reasonable and not made in bad faith and that Bower was capable of performing the offered work. The board held, however, that Bower was entitled to continuing differential benefits because he reasonably refused the job offer. Whitehall appeals. Held:

    An injured employee who refuses an offer of employment for "favored work” which the employee is capable of performing is not entitled to worker’s disability compensation benefits. In the instant case, Bower was physically able to perform the work offered by Whitehall. The refusal was predicated on the fact that he was situated elsewhere and acceptance of the offer would be unsettling. Bower’s refusal to accept the good faith offer results in forfeiture of his right to disability benefits.

      Reference for Points in Headnote
    82 Am Jur 2d, Workmen’s Compensation § 349.

      Reversed.
    Workmen’s Compensation — Favored Work — Refusal — Benefits.
    An injured employee who refuses to accept an offer of employment for "favored work” which the employee is capable of performing is not entitled to workmen’s compensation benefits.

      McCroskey, Libner, VanLeuven, Feldman, Kortering, Cochrane & Brock, for plaintiff.

      Landman, Hathaway, Latimer, Clink & Robb (by Jon D. Vander Ploeg), for defendant.
    Before: Mackenzie, P.J., and D. E. Holbrook, Jr., and Cynar, JJ.
   Per Curiam.

Defendant Whitehall Leather Company appeals by leave granted from a final order of the Worker’s Compensation Appeal Board entered December 30, 1977, ordering defendant to pay plaintiff differential benefits pursuant to MCL 418.351 and 418.371; MSA 17.237(351) and 17.237(371), for continuing total disability resulting from industrial injuries to plaintiff’s left knee.

Plaintiff, a long time management employee at defendant Whitehall Leather Company, suffered various injuries to his left knee, the first occurring in April of 1970. The recurring injuries caused several absences from work and with each recuperation he returned to his employment. During a union strike in the summer of 1974, when management employees performed regular labor jobs, plaintiff’s knee began bothering him again. On July 19, 1974, plaintiff moved to the State of Florida and on November 30, 1974, obtained employment with a jewelry retailer as a floor guard. The instant claim is specifically for continuing weekly benefits calculated by using the differential between his earnings at Whitehall Leather and his earnings at Sam Solomon Co., his Florida employer.

Prior to the hearing on the claim on April 28, 1975, plaintiff was examined at defendant’s request in order to determine if he was capable of returning to work at Whitehall Leather. As a result of the examining doctor’s testimony taken three weeks before the hearing, plaintiff was given a return to work offer at the trial, which offer was refused by plaintiff. An award of the administrative law judge continuing differential benefits was appealed to the Worker’s Compensation Appeal Board.

The board made specific findings that the plaintiff remains disabled from general, common labor, that defendant’s offer of favored employment was reasonable and not made in bad faith, and that plaintiff was capable of performing the offered work.

The board held that plaintiff was entitled to continuing differential benefits because he reasonably refused the job offer. The board held that the refusal was reasonable because plaintiff obtained other employment which mitigated compensation payable from defendant; plaintiff’s wife was employed; and a permanent new residency was established. We disagree.

The precise issue involved is set forth in the board’s opinion:

"Must plaintiff accept a favored job within his capacity to perform, even if it means returning to Michigan from his new home in Florida?”

In Hope v Welch Grape Juice Co, 46 Mich App 128; 207 NW2d 476 (1973), this Court set forth the general rule that an injured employee who refuses an offer of employment for "favored work” which the employee is capable of performing is not entitled to workmen’s compensation benefits. The Court reversed the board’s decision which had terminated payments because there was no specific firm offer of employment within the plaintiff’s ability to perform. In Kolenko v United States Rubber Products, Inc, 285 Mich 159; 280 NW 148 (1938), the Michigan Supreme Court upheld an award to the plaintiff who had refused an offer of employment because the defendant refused to inform her of the nature of the work.

Hope and Kolenko involved situations where the employer insufficiently complied with the "offer of employment” requirement of the general rule set forth in Hope. In the instant case, however, the question is whether the plaintiff is capable of performing the work offered by defendant. Plaintiff cites Lynch v Briggs Manufacturing Co, 329 Mich 168; 45 NW2d 20 (1950), for the principle that an employee is entitled to benefits whenever he is prevented from performing favored work due to events beyond his control and not attributable to him. In Lynch, the Michigan Supreme Court held that an employee who was totally disabled did not lose his right to benefits during a period in which he was prevented from performing favored work because of two subsequent nonwork-related injuries. The Court stated, however, that the plaintiff could not be awarded compensation if he refused work that he was physically able to perform.

The facts of this case are reminiscent of the situation in Pigue v General Motors Corp, 317 Mich 311; 26 NW2d 900 (1947), in which the Court held that an employee was not entitled to benefits for a period in which favored work was missed because of a strike. The Court noted that plaintiffs incapacity to work was not a result of his injury, but because of activity of his labor union.

In the instant case, plaintiff was physically able to perform the work offered by defendant. His refusal was predicated on the fact that he was already situated elsewhere and, therefore, acceptance of the offer would be unsettling. We find that the refusal of the plaintiff-employee to accept the good faith offer of his employer to return to favored work within his physical capabilities results in forfeiture of his right to disability benefits, and we thus reverse the appeal board.


text:
    LORANG v SECRETARY OF STATE
    Docket No. 44336.
    Submitted August 27, 1979, at Detroit.
    Decided October 10, 1979.
    James J. Lorang received notice from the Secretary of State that his driving privileges or licenses were denied because he had four or more convictions of reckless driving. He brought a petition in circuit court for restoration of his driving privileges, and at about that time he received another notice, this notice indicating that his driving privileges had been suspended. The Oakland Circuit Court, William John Beer, J., denied Lorang’s petition for restoration, and Lorang appeals, alleging that under the statute relied upon by the Secretary of State an individual’s driving privileges may not be suspended but that the Secretary can only deprive an individual of his driving privileges at the time his license is issued or reissued. Held:

    The statute in question provides that the Secretary of State shall not issue a license to a person with certain defined disabilities, one of which is four or more convictions of reckless driving. This statute may only be invoked at the time an individual’s license is to be issued or reissued, and may not be relied upon to suspend a person’s driving privileges at any other time.
    Reversed.
    1. Statutes — Construction of Statutes — Judicial Construction.
    Judicial construction of a statute or attempted interpretation to vary the plain meaning of a statute is precluded where there is no necessity to reconcile conflicting statutes, where there is no absence of adequate definitions of relevant terms, and where the statutory language is plain and unambiguous.
    2. Automobiles — Licenses — Suspension of Licenses — Statutes. Suspension of a currently valid driver’s license may not be founded upon a statute which provides that the Secretary of State shall not issue licenses to persons with certain defined disabilities; the statute may be invoked only upon issuance or reissuance of a license (MCL 257.303; MSA 9.2003).

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 194, 195.
    [2] 7 Am Jur 2d, Automobiles and Highway Traffic §§ 106, 111.
    Denial, suspension, or cancellation of driver’s license because of physical disease or defect. 38 ALR3d 452.

      James F. Hewson, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Alan H. Broad, Assistant Attorney General, for defendant.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff James Joseph Lorang appeals from a denial by the circuit court of plaintiff’s petition for restoration of his driving privileges. An "order of denial” had been sent to plaintiff by the Secretary of State informing him that, effective January 26, 1979, his driving privileges or licenses were denied under § 303 of the Michigan Vehicle Code, 1949 PA 300, MCL 257.303; MSA 9.2003, because he had four or more convictions of reckless driving. The order also informed plaintiff that he could seek reinstatement of his driving privileges through the Driver License Appeal Division or the circuit court.

Plaintiff brought a petition for restoration in the circuit court under MCL 257.323; MSA 9.2023, claiming that he had a motor vehicle operator’s license which was valid until June 11, 1981, and that a denial under MCL 257.303; MSA 9.2003 could not take effect until the expiration of that license. At about the same time, plaintiff received a notice from the Michigan Department of State that his driving privileges had been suspended, though plaintiff’s certified driving record does not reflect a suspension but rather contains the words: "Denied, 4 or More Cony of Reckless Dry”.

A hearing was held on plaintiffs petition. The circuit court rejected plaintiffs argument that a "denial” under MCL 257.303; MSA 9.2003 could not be used to suspend plaintiffs present right to drive, but would only be effective upon reissuance of his license. Concerned with plaintiffs driving record, the circuit court refused to restore plaintiffs right to drive.

Plaintiffs argument, that under the plain and unambiguous language of MCL 257.303; MSA 9.2003 a "denial” by the Secretary of State can only deprive an individual of his driving privileges at the time his license is to be issued or reissued, and that the Secretary’s authority to "deny” an application for a license should be distinguished from his power to "suspend” or "revoke” driving privileges, is now before this Court.

"Suspension” and "revocation” are defined by the Michigan Vehicle Code.

" 'Suspension’ means that the driver’s license and privilege to drive a motor vehicle on the public highways are temporarily withdrawn but only during the period of such suspension.” MCL 257.66; MSA 9.1866.
" 'Revocation’ means that the driver’s license and privilege to drive a motor vehicle on the public highways are terminated and shall not be renewed or restored, except that an application for a new license may be presented and acted upon by the department after the expiration of at least 1 year after the date of revocation.” MCL 257.52; MSA 9.1852.

The Secretary of State’s authority to suspend or revoke a license is governed by the Michigan Vehicle Code. Pursuant to § 319 of the code, MCL 257.319; MSA 9.2019, the Secretary must suspend the license of any person who has been convicted of the crimes listed within that section. The Secretary may also suspend or revoke a license for any of the reasons set forth in § 320, MCL 257.320; MSA 9.2020. Additionally, under certain conditions the Secretary has the power to suspend a license in order to secure the court appearance of a person charged with a violation of the code. MCL 257.320a; MSA 9.2121(1). Section 317, MCL 257.317; MSA 9.2017, provides for suspensions or revocations with respect to nonresidents and § 318, MCL 257.318; MSA 9.2018, permits suspension or revocation of a resident’s license should the resident be convicted of a crime in another state which if committed in Michigan would be grounds for suspension or revocation.

None of these provisions were used in the instant case, and it appears that none are applicable to the facts of the case as they were made known to this Court. Rather, the Secretary informed plaintiff that plaintiffs license was suspended under § 303 of the code, MCL 257.303; MSA 9.2003.

MCL 257.303; MSA 9.2003 provides that "The secretary of state shall not issue a license under this act” to persons with certain defined disabilities. Plaintiff falls within subdivision (g) of the statute.

The language of § 303 of the code indicates that this statute may only be used upon issuance of a license. It is not within the Court’s power to expand this statute to permit suspensions of currently valid licenses to be founded thereupon.

"Under generally recognized principles of statutory construction, when there is no necessity to reconcile conflicting statutes, Wayne County Civil Service Comm v Board of Supervisors, 384 Mich 363; 184 NW2d 197 (1971), when there is no absence of adequate operational definitions of relevant terms, Prisoners’ Labor Union v Department of Corrections, 61 Mich App 328; 232 NW2d 699 (1975), lv den 394 Mich 843 (1975), and when the statutory language is plain and unambiguous, Jones v Grand Ledge Public Schools, 349 Mich 1, 9-10; 84 NW2d 327 (1957), judicial construction or attempted interpretation to vary the plain meaning of the statute is precluded.” Lawrence v Dept of Corrections, 88 Mich App 167, 171; 276 NW2d 554 (1979).

Accordingly, the decision of the trial court is reversed. No costs, a public question being involved.

       The definitions given herein are those which were in effect at the time of the hearing on plaintiffs petition. Later amendments were made which do not affect the issue before the Court. Several of the other provisions discussed also have been amended without material effect on this case. These include §§ 317, 318, and 321a.