author: Allen, P. J.

text:
    PEOPLE ex rel BOOK v HOOKER
    Docket No. 77-2533.
    Submitted April 6, 1978, at Lansing.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Steven Hooker was adjudged a person requiring treatment and involuntarily committed to a mental health facility for 60 days. At the end of the initial commitment the mental health authority petitioned the Genesee Probate Court for a 90-day recommitment order, alleging that the defendant, although somewhat improved, was a person who continued to require treatment. The petition was dismissed on grounds that the patient did not meet the criteria for involuntary commitment. The petitioners appealed to Genesee Circuit Court and the probate order was reversed and the petition for recommitment granted, Philip C. Elliott, J. Steven Hooker appeals by leave granted contending that the mental health authorities must meet the same standards for a recommitment order that they must meet for an original order of commitment and that standard was not met at the time of his recommitment. Held:

      A petitioner seeking a 90-day recommitment order under the Mental Health Code following a 60-day initial commitment must show that the patient to be involuntarily recommitted is a "person requiring treatment” under the act, which is the same standard applied in granting the original commitment order. There was enough evidence in the present action, however, for the probate court to have found that the patient did meet that standard at the recommitment hearing.
    Affirmed.
    1. Mental Health—Statutes—Recommitment Orders—Standards —Intent of Legislature.
    A petitioner seeking a 90-day recommitment order under the Michigan Mental Health Code following an initial 60-day commitment must show that the patient to be involuntarily recommitted is a "person requiring treatment” under the code, which is the same standard applied in granting the original 60-day order; to allow a lesser standard for recommitment would be unconstitutional and contrary to the intent of the Legislature to provide objective criteria for involuntary civil commitments and to make the process fundamentally judicial rather than medical (MCL 330.1401, 330.1472, 330.1476[2]; MSA 14.800[401], 14.800[472], 14.800[476] [2]).

      Reference for Points in Headnotes

       41 Am Jur 2d, Incompetent Persons § 33 et seq.

      2. Mental Health—Persons Requiring Treatment—Involuntary Commitments—Recommitments—Possibility op Recurrence.
    A person who is dangerous to himself or others is a person requiring treatment under the section of the Mental Health Code governing involuntary commitments; a patient who has been committed under this section and who has responded to treatment may still be found to be a person requiring treatment at a hearing on a 90-day recommitment order where there is competent medical testimony that there is an imminent possibility of recurrence of the symptoms which gave rise to the original commitment order (MCL 330.1401; MSA 14.800[401]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert F. Leonard, Prosecuting Attorney, for the people.

      Richard M. Barron, for defendant on appeal.
    Before: Allen, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Allen, P. J.

In order to justify a 90-day recommitment order under § 472(2) of the Michigan Mental Health Code MCL 330.1472; MSA 14.800(472), must the petitioner show that the patient is a "person requiring treatment” (hereinafter PRT) as defined in § 401 of the code, i.e., mentally ill and dangerous to himself or others? Or is a lower standard under which the people are required to prove only that the patient "continues to require treatment” sufficient? The probate court held that the higher standard was mandated by statute but, on appeal, the circuit court held the lower standard was sufficient.

Steven Hooker was involuntarily, civilly committed to Ypsilanti State Hospital on March 23, 1977, for 60 days as a PRT. He was found to be suffering from chronic schizophrenia, undifferentiated, and was placed on medication. The propriety of the original commitment is not challenged. As the end of the 60-day commitment approached, the hospital authorities concluded that the patient required further treatment prior to being released. Accordingly, a petition was filed in the Genesee County Probate Court under § 472(2), to continue the involuntary commitment for an additional 90 days. At the hearing held before the probate judge on the petition, a psychiatrist for the people testified that the patient could "get up and take care of himself, like put his clothes on and he can eat, but about medication I don’t know if he has enough judgment to take medication weekly”. The psychiatrist concluded that the patient’s prognosis was fair with continued hospitalization, but was poor if the patient did not receive treatment. At the conclusion of the psychiatrist’s testimony, the probate judge dismissed the petition because plaintiff had failed to prove that the patient was dangerous either to himself or to others, and an order was entered dismissing the matter because the patient had not "met the criteria for involuntary commitment”.

As a result of that order, the patient was released on May 19, 1977, and plaintiff filed a claim of appeal with the Genesee County Circuit Court. Following arguments, the circuit court ruled on June 20, 1977, that the probate court had applied an incorrect legal standard. According to the circuit judge, the statute did not require proof that the patient was a PRT but only required proof that the patient "continues to require treatment”. Noting the ambiguity of the statutory language, the circuit judge advised counsel to appeal to this Court, but remanded the case to the probate court for a hearing under the "continues to require treatment” standard. The hearing upon remand was held June 22, at the conclusion of which the probate judge ruled:

"I might be mistaken, I still don’t believe that the evidence meets the statutory criteria, however, that’s sort of academic at this point because the Circuit Court has found that is the standard to be applied. That you do not have to show that the person is mentally ill neither dangerous, to himself or to others, however, cannot perform the necessary functions in order to sustain himself. Now than [sic] you simply have to show that this person is still mentally ill. Now, applying that standard then I find based on the Doctor’s testimony that he still requires treatment, that Mr. Hooker is mentally ill and does require treatment and I am therefore going to order that he be committed to Ypsilanti State Hospital for a Ninety Day treatment.”

In the interval between the patient’s release from the Ypsilanti State Hospital and the hearing before the circuit judge, the worst fears of the psychiatrist became a reality. Not long after release, Hooker "kind of went to pieces”. He was found at the Community Mental Health building staring blankly at the walls, claiming he was on another planet, refusing to eat and generally in a state of total confusion. These additional facts were brought to the attention of the court at both the circuit court hearing and the probate court hearing upon remand.

The relevant sections of the Michigan Mental Health Code are found in §§ 401, 472 and 476 which read:

"§ 401. As used in this chapter, 'person requiring treatment’ means (a), (b), or (c):
"(a) A person who is mentally ill, and who as a result of that mental illness can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself or another person, and who has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.
"(b) A person who is mentally ill, and who as a result of that mental illness is unable to attend to those of his basic physical needs such as food, clothing, or shelter that must be attended to in order for him to avoid serious harm in the near future, and who has demonstrated that inability by failing to attend to those basic physical needs.
"(c) A person who is mentally ill, whose judgment is so impaired that he is unable to understand his need for treatment and whose continued behavior as the result of this mental illness can reasonably be expected, on the basis of competent medical opinion, to result in significant physical harm to himself or others. This person shall be hospitalized only under the provisions of sections 434 through 438 of this act.” MCL 330.1401; MSA 14.800(401).
"§ 472. (1) An initial order of hospitalization shall be for a period not to exceed 60 days.
"(2) If, prior to the expiration of a 60-day order, the director believes that the condition of a patient is such that he continues to require treatment, the director shall, not less than 14 days prior to the expiration of the order, petition the court for a determination that the patient continues to require treatment and for an order authorizing hospitalization for a period not to exceed 90 days.
"(3) If, prior to the expiration of a 90-day order, the director believes that the condition of the patient is such that he continues to require treatment, the director shall, not less than 14 days prior to the expiration of the order, petition the court for a determination that the patient continues to be a person requiring treatment and for an order of continuing hospitalization. An order of continuing hospitalization may be for an unspecified period of time.” MCL 330.1472; MSA 14.800(472). (Emphasis supplied.)
"§476. (2) The director shall discharge a patient hospitalized by court order when the patient’s mental condition is such that he no longer meets the criteria of a person requiring treatment.” MCL 330.1476(2); MSA 14.800(476)(2).

The issue posed is of first impression and of considerable importance to the practice in probate courts. Persuasive arguments support the interpretation given the statute by both the probate court and the circuit court. It is logical to assume that since there will normally be some improvement in the patient’s condition during the 60-day commitment, the Legislature intended a lesser standard for a 90-day recommitment order. It is also logical to conclude that since § 472(2) requires that "the patient continues to require treatment”, whereas § 472(3) requires "that the patient continues to be a person requiring treatment”, the difference in terminology in successive sections of the statute justifies the conclusion that different standards are to be employed. On the other hand it is equally arguable that although § 472(2) does not use the exact terminology, reading the statute as a whole indicates that the section refers to a PRT. Furthermore, if § 472(2) establishes a different test than that of PRT, that test is nowhere defined in the statute, and continuing commitment could therefore be based on the general opinion of a psychiatrist. Such a construction would be contrary to the purpose of the Legislature which, in enacting the statute, intended to provide objective criteria for involuntary civil commitments and make the process fundamentally judicial rather than medical.

Although the question is admittedly close, we opine that the PRT standard is the proper standard to be applied in 90-day commitment hearings processed under § 472(2). Two considerations—(1) internal consistency with other sections of the statute, and (2) legislative intent to abolish a test based upon the subjective opinion of a psychiatrist —lead to our conclusion. Section 473 requires that the petition for 90-day continuing hospitalization authorized in § 472(2) contain a statement "setting forth the reasons for the director’s determination that the patient continues to be a person requiring treatment”. Obviously, there would be no need to recite PRT reasons if a lower or different standard were intended in § 472(2). Furthermore, § 476 governing discharges requires that the PRT standards be applied to involuntarily hospitalized patients. This would include patients involuntarily hospitalized under § 472(1) 60-day hospitalization orders. Obviously, it is totally inconsistent to continue commitment of a patient who does not meet the PRT standard when § 476 provides that the patient shall be discharged if he no longer meets the PRT standard.

The new Michigan Mental Health Code, being 1974 PA 258, governing civil admission and discharge procedures for mental illness was enacted in response to Bell v Wayne County General Hospital, 384 F Supp 1085 (ED Mich, 1974). In that decision the Court struck down as overbroad and vague the then existing statutory standards for permanent and temporary mental illness. In our opinion the interpretation of the statute as made by the circuit court and as urged by the people in this case would reintroduce into the statute the flaws found fatally defective in Bell, for it would impose a different test than that of PRT, a test which is nowhere defined by statute, and a test which would permit continuing commitment based on the general opinion of a psychiatrist. Because we believe this was the evil which the Legislature sought to avoid in enacting 1974 PA 258, we conclude that the words "continues to require treatment” in § 472(2), while maladroit, are a cross-reference to "a person requiring treatment” as employed in § 401, § 473 and § 476 of the code.

Although we conclude that the probate court correctly interpreted the law at the first probate hearing, we also conclude that the court erred as to the facts at the hearing on remand. At the original probate hearing held May 19, 1977, the psychiatrist testified that the patient could then attend to his basic physical needs and, in his present state of remission, was not a danger to himself. This obviously made it difficult for the probate judge to find that Hooker met the "dangerous to himself or others” standard. But at the second probate hearing held on June 22, the full facts concerning the patient’s disorientation within a few days after being released and his refusal to take food were stated on the record, and no objection was taken thereto. Clearly, the evidence given at the second hearing supported a conclusion that Hooker was a PRT and met the criteria contained in § 472(2) for 90-day continuing hospitalization. Nevertheless, though the probate court erred in holding that the evidence did not meet the statutory criteria, the error was harmless. For the reasons stated in this opinion, the court, reached the right result when, on June 22, 1977, it ordered the patient committed to the Ypsilanti State Hospital for 90-day treatment.

Plaintiff fears that under the statutory interpretation which we have herein adopted, many patients involuntarily committed may be released at the end of the 60-day commitment period just when the treatment program begins to show results. We do not agree. It appears to us that if there is an imminent possibility of recurrence of symptoms, and if there is competent medical testimony to that effect, the patient still would be a PRT under § 401(a), (b), or (c). At the first probate hearing the psychiatrist testified that the patient would not take his medication without supervision and that the patient’s mother was not available to provide that supervision. In our opinion, even the evidence given at that initial hearing, though not given as clearly as could be, supported the conclusion that Hooker was a PRT as defined in § 401(c). At the second probate hearing, the testimony left no doubt as to Hooker’s PRT status.

Affirmed; no costs, a public question being involved.

       "It is somewhat unfortunate that the Legislature used that term ['continues to be a person requiring treatment’] because it is possible to construe the phrase as Judge Quinn so did construe the phrase. Continue to require treatment meant to mean that he is a person who continued to be a 'person requiring treatment’ within the meaning of the statute. It seems to me that that was not the intent of the Legislature, and that, as Mr. Burden indicated, what the Legislature intended was after a person has been determined to be, for one reason or another, a person requiring treatment within the meaning of that statutory definition.
      "I would hope, however, that in this case or some other case an opinion of the Court of Appeals could be obtained. They can decide once and for all the meaning of that phrase, 'continue to require treatment’, and should decide it so that the Probate Court of Genesee County and the other counties are informed by the appellate courts what that phrase means.” (Tr, pp 31, 32, 33, 34.)

       A new petition for involuntary confinement was filed June 9, but hearing was postponed pending hearing by the circuit court on the appeal of the original petition. The new petition was dropped following the 90-day commitment order issued June 22 by the probate court. The 90-day commitment order is the subject matter of the appeal by defendant to this Court.

       The people argue that § 473 is merely a requirement of the petition, not the test to be applied by the court. We reject this argument since there would be no purpose of the petition setting forth the PRT standard if a lower or different standard could be employed by the court.

       "(2) The director shall discharge a patient hospitalized by court order when the patient’s mental condition is such that he no longer meets the criteria of a person requiring treatment.” MCL 330.1476(2); MSA 14.800(476)(2). (Emphasis supplied.)

       "Thus, we must conclude that in MCLA § 330.21 and § 330.54, the Michigan act sets forth a process under which a person whose affliction, in the view of a given court, falls anywhere within a vast, uncontoured description of mental ills, is subject to both temporary and indefinite commitment, whether his particular ill presents a realistic threat of harm to himself or to others. In our opinion, the standard of commitment for mental illness is fatally vague and overbroad.” Bell v Wayne County General Hospital, 384 F Supp 1085, 1096 (ED Mich, 1974).

       The problem at the initial hearing was that the medical expert was only asked if at the present time the patient was dangerous to himself, and was not asked whether, if released, he would be a danger to himself or to others. But the testimony at the first hearing, taken as a whole, reveals that the patient continued to be a PRT. This omission can be corrected in future cases.


source: Caselaw Access Project

author: J. H. Gillis, J. D. C. Riley, J.

license: Public Domain

text:
    GREENE v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Docket No. 77-3287.
    Submitted April 3, 1978, at Grand Rapids.
    Decided May 22, 1978.
    Leave to appeal applied for.
    Lee H. Greene brought an action against State Farm Mutual Automobile Insurance Company to recover benefits under his no-fault automobile policy for injuries sustained in an automobile accident. Partial summary judgment for plaintiff. Robert E. A. Boyle, J., of St. Joseph Circuit Court, held that the defendant cannot claim credit for social security payments received by plaintiff against any sums due plaintiff as income loss. Defendant appeals. Held:

    That part of the no-fault automobile statute which authorizes the setoff of benefits payable against benefits received from a governmental source is constitutional and does not violate public policy; an insurer is allowed to set off benefits payable against benefits received from a governmental source.
    Reversed and remanded.
    D. C. Riley, J., in a dissenting opinion would hold that the no-fault automobile statute which authorizes the set off of benefits payable against benefits received from a governmental source is unconstitutional and violative of public policy.
    Opinion op the Court
    1. Constitutional Law—Automobiles—No-Fault Insurance—Benefits—Set Offs—Public Policy-—Statutes.
    A section of the no-fault automobile insurance statute which allows an insurer to set off benefits payable against benefits received from a governmental source is constitutional and not violative of public policy (MCL 500.3109[1]; MSA 24.13109[1]).
    Dissent by D. C. Riley, J.
    2. Constitutional Law—Automobiles—No-Fault Insurance—Benefits—Set Offs—Public Policy—Statutes.

      A section of the no-fault automobile insurance statute which authorizes an insurer to set off beneñts payable against beneñts

      received from a governmental source is unconstitutional and violative of public policy (MCL S00.3109[l]; MSA 24.13109[1]).

      Reference for Points in Headnotes

       New Topic Service, Am Jur 2d, No-Fault Insurance §§ 9, 12, 13.

      Sloan, Zarbock & Risdon (by William L. Benefiel), for plaintiff.

      James, Dark, Craig & Brill, for defendant.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

Plaintiff was injured on May 16, 1975, in an automobile accident while covered by a no-fault automobile insurance policy issued by defendant. The trial court granted plaintiff’s motion for partial summary judgment against defendant. GCR 1963, 117.2(2) and (3).

Defendant contends that MCL 500.3109(1); MSA 24.13109(1), which allows an insurer to set off benefits payable against benefits received from a governmental source, is constitutional and not violative of public policy. We agree.

In Smart v Citizens Mutual Insurance Co, 83 Mich App 30; 268 NW2d 273 (1978), the panel, which included this writer, concluded that:

"In mandatory terms, the Legislature, by its enactment of the no-fault automobile insurance provisions, established a minimum level of disability benefits for Michigan citizens who suffer adverse financial consequences from personal injury automobile accidents. The establishment of that minimum level is maintained by Section 3109(1).
"All benefits derived from governmentally promulgated programs are combined under that section to reach the predetermined minimum benefit level. Those who desire to enhance that benefit provision may do so by voluntarily entering into private contractual arrangements.”

Accordingly, on the basis of Smart, supra, we find that the trial court erred in granting plaintiffs motion for summary judgment.

Reversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant.

R. B. Burns, P. J., concurred.

D. C. Riley, J.

(dissenting). I respectfully dissent. Defendant’s contention that MCL 500.3109(1); MSA 24.13109(1), which authorizes an insurer to set off benefits payable against benefits received from a governmental source, is constitutional and not violative of public policy, was answered contrary to its position in Wysocki v Detroit Automobile Inter-Insurance Exchange, 77 Mich App 565; 258 NW2d 561 (1977), O'Donnell v State Farm Mutual Automobile Insurance Co, 70 Mich App 487; 245 NW2d 801 (1976), lv gtd, 397 Mich 848 (1976), Pollock v Frankenmuth Mutual Insurance Co, 79 Mich App 218; 261 NW2d 554 (1977), and Mielke v Michigan Millers Mutual Insurance Co, 82 Mich App 721; 267 NW2d 165 (1978).

I concur in the holdings of these decisions.

I would affirm.


author: Bronson, P. J. Allen, J.

text:
    RICE v MICHIGAN SUGAR COMPANY
    Docket No. 77-551.
    Submitted November 15, 1977, at Detroit.
    Decided May 23, 1978.
    Leave to appeal applied for.
    Vern Rice was injured in 1969 while employed by Michigan Sugar Company and received workmen’s compensation benefits. In 1973 he petitioned for a hearing against his employer, his employer’s insurer American Mutual Liability Company, and the Second Injury Fund, claiming total and permanent disability arising from the original injury. The hearing referee held that Rice had established loss of industrial use of both legs and ordered payment of differential benefits. Rice appealed the determination of the date of this disability. The Workmen’s Compensation Appeal Board affirmed the award of differential benefits and declined to apply the so-called one-year-back rule. The Second Injury Fund appeals by leave granted, contending that the one-year-back rule should apply and that the differential benefits should not be paid for any period prior to one year before the date of the petition for those benefits. Held:

    The Workmen’s Compensation Appeal Board properly declined to apply the one-year-back rule; the reference in the statute to applications for "further compensation” does not encompass the situation where the compensation sought is for injury resulting from a deterioration of a condition caused by the original injury.
    Affirmed.
    Allen, J., dissents. He would hold that the statute imposing the one-year-back rule applies to a situation wherein an injured employee who has received compensation later requests additional benefits from a continuing disability traceable to the original injury. Judge Allen would also hold that in this case the real party in interest, the Second Injury Fund, was aggrieved by the decision not to apply the rule because the fund, unlike the employer, did not have notice of the potential claim against it until the petition for additional benefits was filed.

      References for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 482 et seq., 605.

       82 Am Jur 2d, Workmen’s Compensation § 343 et seq.

       81 Am Jur 2d, Workmen’s Compensation § 28.

       81 Am Jur 2d, Workmen’s Compensation § 27 et seq.

       81 Am Jur 2d, Workmen’s Compensation §§ 27, 29.

      Opinion op the Court
    1. Workmen’s Compensation—Further Compensation—One-Year-Back Rule—Statutes.
    The term "further compensation” as used in the so-called one-year-back provision of the workmen’s compensation statute, which bars payment of compensation in some circumstances for any period more than one year prior to the date of application for benefits, is a term of art and is not susceptible to interpretation based on its common meaning (MCL 418.833[1]; MSA 17.237[833] [1]).
    2. Workmen’s Compensation—One-Year-Back Rule—Separate and Distinct Injuries—-Continuing Disability—Statutes.
    The term "further compensation” as used in the one-year-back provision of the workmen’s compensation statute means compensation for separate and distinct injuries existing from the date of injury, but does not include compensation for injuries resulting or developing from a single original injury (MCL 418.833[1]; MSA 17.237[833] [1]).
    3. Workmen’s Compensation—Further Compensation—One-Year-Back Rule—Continuing Disability—Statutes.
    The Workmen’s Compensation Appeal Board correctly declined to apply the one-year-back rule, which would have precluded benefits for any period more than one year prior to an injured employee’s application for further compensation, where the employee was first compensated for a back injury occurring in 1969 and filed in 1973 a petition for total and permanent disability benefits pursuant to which the appeal board found that the employee had established loss of industrial use of both legs as a result of deterioration of a condition caused by the original injury (MCL 418.833[1]; MSA 17.237[833] [1]).
    4. Workmen’s Compensation—Remedial Legislation—Liberal Construction.
    The worker’s disability compensation act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee.
    5. Statutes—Construction—Consideration.
    The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.
    6. Workmen’s Compensation—One-Year-Back Rule—Legislative Purpose—Statutes.
    The legislative purpose of the one-year-back rule of the worker’s disability compensation act, to provide notice to defendants and to prevent stale claims, is not served by limiting recovery of a plaintiff who suffers an injury and who later suffers additional consequences of the original injury and immediately files for additional compensation, because in such a case there is no problem of a plaintiff unjustifiably delaying his claim (MCL 418.833[1]; MSA 17.237[833] [1]).
    Dissent by Allen, J.
    7. Workmen’s Compensation—Further Compensation—One-Year-Back Rule—Continuing Disability—Statutes.

      The Legislature, when it used the term "further compensation’’ in the section of the workmen’s compensation statute relating to the one-year-back rule, contemplated application of the rule in a situation where an injured employee is paid benefits for the injury and later requests additional benefits for continuing disability traceable to the same injury (MCL 418.833[1]; MSA 17.237[833] [1 ]).

      8. Workmen’s Compensation—Further Compensation—Second Injury Fund—One-Year-Back Rule—Statutes.

      An employee who receives compensation for an injury and who later dies for additional compensation from the Second Injury Fund and who establishes that he is entitled to further compensation on the basis of deterioration of a condition caused by the original injury should be limited to compensation for a period of one year back from the date of his petition for further benefits where the Second Injury Fund, the party actually aggrieved by the award of additional benefits, did not have notice of the potential claim against it until the petition was Med (MCL 418.833[1]; MSA 17.237[833][1]).

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P. C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard F. Za

      pala, Assistant Attorney General, for the Second Injury Fund.
    Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   Bronson, P. J.

Plaintiff suffered a back injury in 1969, while employed by defendant, for which he was compensated under the Workmen’s Compensation Act. On September 5, 1973, plaintiff filed a petition for a hearing against defendant-employer and the Second Injury Fund for total and permanent disability benefits, claiming the loss of industrial use of both legs. Plaintiff claimed that the total and permanent disability was caused by the original injury and subsequent deterioration of his condition. The Workmen’s Compensation Appeal Board unanimously found that plaintiff had established loss of industrial use of both legs as of April 22, 1971, as a result of a deterioration of a condition caused by the original injury. The board also held that the "one-year-back” rule, MCL 418.833(1); MSA 17.237(833)(1), did not apply.

The Second Injury Fund appeals by leave granted the board’s determination that the one-year-back rule does not apply to the case at bar.

MCL 418.833(1); MSA 17.237(833)(1) (the one-year-back rule) provides:

"If payment of compensation is made, other than medical expenses, and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period which is more than 1 year prior to the date of filing of such application.”

Some discussion of prior cases dealing with this provision is necessary for a complete understanding of the complex issue before us.

A reading of these cases discloses initially that the term "further compensation”, as used in MCL 418.833(1); MSA 17.237(833)(1), is a term of art. It is given meaning by the cases interpreting it and, contrary to the dissent’s approach, is not susceptible to interpretation based on its common meaning.

The first case construing the term "further compensation” in the context of the Workmen’s Compensation Act was Palchak v Murray Corp of America, 318 Mich 482; 28 NW2d 295 (1947).

In Palchak, plaintiff suffered an eye injury in 1943 and was compensated for the injury. Plaintiff filed a petition in 1945 based on the deterioration of the 1943 injury. The defendant asserted that it had not received proper notice and that a proper claim had not been made. The Court affirmed an award for plaintiff, stating:

"The case at bar does not involve distinct injuries sustained in an accident, but rather two results of a single injury. The department of labor and industry acquired jurisdiction of the case by virtue of the original proceedings taken before it. Such jurisdiction continued for the purpose of further proceedings for compensation as the development of conditions, brought about by the original injury, might require. The statute in question did not impose on the plaintiff the duty of giving notice of such further development nor did it require plaintiff’s claim for further compensation based thereon to be presented within a prescribed period, as contended by defendant. The requirements in said section as to notice to the employer, and the limitations with respect to filing claims, did not apply.” 318 Mich at 493-494.

This language was interpreted in Morgan v Lloyds Builders Inc, 344 Mich 524; 73 NW2d 880 (1955), to mean that a claim based on a deteriorated condition is not a petition for "further compensation”.

Morgan also involved an eye injury. Plaintiff was compensated for his loss caused by the injury, and later filed an application for an adjustment because of a subsequent difficulty, which resulted in loss of vision of that eye. Defendant raised the defense of lack of notice. The Court concluded that the one-year-back rule did not apply.

After quoting the previously quoted language in Palchak, the Court said:

"We find that the petition entitled, 'application for hearing and adjustment of claim,’ filed by the plaintiff, dated July 28, 1953, is not a petition for further compensation for loss of time or employment, but is a petition for loss of vision in the right eye.” 344 Mich at 528-529.

Morgan was discussed in Loucks v Bauman, 356 Mich 514; 97 NW2d 321 (1959). In Loucks plaintiff received compensation for an amputation of his right leg. He later filed for an adjustment due to total disability based on the unstable condition of his remaining leg, which had been injured in the same accident.

After citing the one-year-back rule, three justices wrote:

"In the instant case, plaintiff speaks of a further development, after loss of the left leg, in that the 'increased weight-bearing due to the loss of Louck’s left leg directly contributed to and aggravated the unstable condition of his right leg.’ The appeal board made no such finding of fact that the disability of the right leg was a further development, and there is no testimony to support such theory in the appendix. On the contrary, the appeal board expressly found that plaintiffs total disability resulted from both the amputation of the left leg and the unstable condition of the right leg which had existed since the date of his accidental injury on June 20, 1947. This is, then, according to the finding of fact of the appeal board, not a case of a further development, resulting in a disability which did not exist when compensation was allowed for the loss of the left leg, but, rather, an application for further compensation for a disability existing from the date of injury, on which an award of compensation may not, under the quoted language of the statute, be made for any period more than 1 year prior to filing the application on November 12, 1954.” (Emphasis added.) 356 Mich at 516-517.

The one-year-back rule was applied in Loucks because plaintiffs application was for "further compensation”—for a separate and distinct injury rather than a further development from a single injury. We deduce from the above-discussed cases the general rule that "further compensation” is a term of art, as used in the act, meaning compensation for separate and distinct injuries, but not including compensation for injuries resulting or developing from a single original injury.

More recent cases are by and large in accordance with this general rule.

In Adcox v Northville Laboratories, Inc, 381 Mich 600; 166 NW2d 460 (1969), the one-year-back rule was applied because:

" 'In our opinion, this testimony supports the finding that plaintiff did not sustain the burden of proving a "further and subsequent development,” that is, one injury with 2 distinct results. See Palchak v Murray Corporation of America (1947), 318 Mich 482, 493.’ ” 381 Mich at 610, fn, quoting Adcox v Northville Laboratories, 11 Mich App 13, 18; 160 NW2d 587 (1968).

I.e., because the WCAB found as a fact that the plaintiff’s condition was not a result of the original injury, his petition was one for "further compensation” which was subject to the one-year-back rule.

Drake v Norge Division, Borg-Warner Corp, 48 Mich App 88; 210 NW2d 131 (1973), is additional authority for our interpretation of the term "further compensation”.

Plaintiff in Drake suffered a heart attack and was awarded compensation for total disability. He then filed a petition seeking additional benefits, alleging total and permanent disability due to the loss of industrial use of both arms and legs as a result of the heart attack. The WCAB granted additional compensation, finding that plaintiff had lost the industrial use of his legs as a consequence of his work-related heart attack. This Court affirmed, noting that there was evidence in the record to support that claim, quoting the language from Palchak which we quote above and stating:

"Plaintiff in the case at bar is not alleging a second and separate injury sustained at the time of the first injury. There was but a single injury in this case.” 48 Mich App at 95.

Thus, on facts almost identical to the case at bar this Court has held that the one-year-back rule did not apply.

To repeat, the cases above consistently hold that "further compensation” means compensation for a distinct injury; "further compensation” does not encompass a petition for compensation based on separate results or consequences of a single injury.

Appellant relies heavily on Baldwin v Chrysler Corp, 67 Mich App 61; 240 NW2d 266 (1976). This reliance is misplaced.

In Baldwin, plaintiff had lost the use of his right leg due to polio. He then lost his left leg in a work-related injury for which he received specific loss benefits. Twenty-five years after those benefits expired, plaintiff petitioned for total and permanent disability benefits. The Court of Appeals applied the one-year-back rule without citation of any authority or discussion. Baldwin should probably be confined to its facts because of the lack of discussion of this issue as well as the unusual circumstances under which it arose. However, Baldwin also is distinguishable from the case at bar because there plaintiffs claim does not appear to have been based on a result or development from the original injury, but was a request for additional benefits based solely on the original injury. In contrast, the case at bar is squarely within the holding of prior cases that a claim based on a separate result or deterioration from an injury is not one for "further compensation”. See Drake v Norge Division, supra; Loucks v Bauman, supra; Morgan v Lloyds Builders Inc, supra; Palchak v Murray Corp, supra.

Applying prior law to the case at bar is relatively easy. The WCAB did not apply the one-year-back rule here because plaintiffs claim was based on a demonstrated deterioration in condition as a result of an original injury. Thus, plaintiffs claim was not one for "further compensation” under MCL 418.833(1); MSA 17.237(833)(1) and the Palchak-Morgan-Loucks-Drake line of cases. We find evidence supporting the WCAB’s finding of fact. Therefore, we hold that the WCAB correctly declined to apply the one-year-back rule.

This result is sound from a policy standpoint as well.

First, it has long been held that the Workmen’s Compensation Act is remedial in nature and should be construed in a liberal and humanitarian manner in favor of the employee. Jolliff v American Advertising Distributors, Inc, 49 Mich App 1; 211 NW2d 260 (1973), Hite v Evart Products Co, 34 Mich App 247; 191 NW2d 136 (1971), Dean v Arrowhead Steel Products Co, Inc, 5 Mich App 691; 147 NW2d 751 (1967).

Second, "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons”. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968).

Finally, assuming that the legislative purpose of the one-year-back rule is to provide notice to defendant and prevent stale claims, see White v Michigan Consolidated Gas Co, 352 Mich 201, 219; 89 NW2d 439 (1958), this policy is not served by limiting the recovery of a plaintiff who suffers an injury and who later suffers additional consequences of the original injury and immediately files for additional compensation. In such a case there is no problem of a plaintiff unjustifiably delaying his claim. For example, the Court in White noted:

"If one thing is clear about this record, it is that plaintiff since May 20, 1952, [the date plaintiff filed for a hearing on adjustment of claim] has consistently and vigorously claimed compensation by every means at his command. The notice of claim and litigation for it has been continuous. We do not believe the legislature could have intended the limitation to be effective in such a situation.” 352 Mich at 212. Cf. Baldwin v Chrysler Corp, supra.

Affirmed. Costs to appellee.

T. M. Burns, J., concurred.

Allen, J.

(dissenting). I cannot agree that the law is as clear as the majority opinion suggests. At least three cases suggest that the one year back rule should apply in the instant case. In Loucks v Bauman, 356 Mich 514; 97 NW2d 321 (1959), plaintiff suffered an employment-related amputation of one leg and was paid specific loss benefits pursuant to the schedule. Some time after those benefits expired, he returned seeking total disability benefits, arguing that his other leg had also been rendered unstable and unusable by the injury to the left leg. In an opinion signed by three justices, Chief Justice Dethmers concluded that the instability of the other leg had existed since the date of the original injury, was not a "further development”, and thus the plaintiff was requesting "further compensation” for his original injury which should be limited by the one-year-back rule. This view carried the day, thanks to a separate concurrence by Justice Edwards.

The next decision applying the one-year-back rule was Adcox v Northville Laboratories, Inc, 381 Mich 600; 166 NW2d 460 (1969). The plaintiff in that case suffered a hip injury and received voluntarily paid total disability compensation for slightly more than a year. Payments were then stopped by the employer and several years went by before the plaintiff filed a petition for more total disability benefits. That petition alleged that the hip injury had further degenerated into a condition of "aseptic necrosis”. The WCAB found that this was a new disability which was not subject to the one-year-back rule. However, the Supreme Court reversed that conclusion on appeal in an opinion which is fairly summarized by the following quotation:

"The doctor’s quoted testimony reads fairly if not persuasively that plaintiffs 1962 pain and subsequent disability was due to aseptic necrosis; that such necrosis is a not-unusual result of a hip fracture such as was sustained the previous year by plaintiff; that it 'arose as the result of the fracture with damage to the blood supply to the head of the bone,’ and that 'basically it is the result of the original trauma.’ It supports the quoted finding as well as the final conclusion reached by Division 1 of Court of Appeals and calls for a determination here that plaintiff failed to prove that he has suffered a 'further development’ within meaning and purpose of the cases which Justices Dethmers and Edwards considered in their concurring opinions of Loucks v Bauman (1959), 356 Mich 514, 529.” 381 Mich at 610.

For the stated reasons, the Court applied the one-year-back rule to limit the plaintiff’s recovery. The case appears to say that where the later difficulties are the "not unusual result” of the original injury, the plaintiff has not shown a "further development” of the sort which will avoid application of the one-year-back rule.

The third and strongest case for application of the one-year-back rule is Baldwin v Chrysler Corp, 67 Mich App 61; 240 NW2d 266 (1976), lv den, 396 Mich 862 (1976). Plaintiff suffered a leg amputation and was paid specific loss benefits. Thereafter, he obtained other employment which lasted for approximately two years. When that employment ended, plaintiff petitioned for "total and permanent disability” benefits, alleging loss of industrial use of both legs. Plaintiff was found to be "totally and permanently disabled”, but the one-year-back rule was applied to limit the amount of benefits.

Baldwin is similar to the present case in that the plaintiff was seeking "total and permanent disability” benefits after previously receiving benefits of another type. I disagree with the majority that because plaintiff’s condition in Baldwin was the same at all times whereas, in the present case, plaintiff’s condition had deteriorated, Baldwin is distinguishable. I believe this stretches language beyond reason. In plain and simple language, the statute provides that where compensation benefits have been made "and an application for further compensation is later filed with the bureau, no compensation shall be ordered for any period more than one year prior to the date of filing of such application”. Based on the commonly understood dictionary use of the word "further”, the statute at least semantically covers the present situation. This plaintiff suffered a back injury and was paid benefits for the resulting disability. He was, is, and probably will remain totally disabled from that injury. By pointing to specific symptoms of that injury, he has been able to establish "total and permanent disability” but the fact remains that all of his petitions have sought benefits for continuing disability traceable to the same injury. He wants and is entitled to something additional for the same injury. I believe that this is what the Legislature had in mind when it used the phrase "further compensation”.

A principal purpose of the one-year-back rule is to provide timely notice to defendants of the claims which will be made against them.

"Obviously this section was passed to guarantee a defendant prompt notice of claim for subsequent compensation, and to prohibit imposing on a defendant the burden of defending a stale claim.” White v Michigan Consolidated Gas Co, 352 Mich 201, 212; 89 NW2d 439 (1958).

Defendant employer in this case had notice of the plaintiffs injury from the day it occurred. However, defendant appellant, Second Injury Fund, the party actually aggrieved by the decision below, did not have notice of the potential claim against it until the petition was filed. This is an additional reason—not present in most of the other cases— for applying the one-year-back rule on these facts.

Application of the one-year-back rule is not—as the majority opinion implies—inhumane or harsh in application to employees. Any employee who suffers an injury for which he is paid compensation and who later suffers additional consequences of the original injury is fully protected upon promptly filing for additional compensation. The employee is entitled to the additional benefits dating back one year from the date on which the petition for additional benefits was filed. I would reverse in part the decision of the WCAB and remand for entry of an order for differential benefits commencing September 5, 1972, rather than commencing September 5, 1971.

       This issue was not waived by defendant’s failure to argue it before the WCAB, as defendant, satisfied with the referee’s decision, had no reason to anticipate a need to argue it. See White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958).

       We note that Palchak and Morgan were disputes over notice to an employer and did not involve the Second Injury Fund. Nevertheless, the result they reach is relevant to the issue before us.

       See MCLA 418.833(1); MSA 17.237(833)(1).

       Justice Edwards, concurring, agreed with this holding:
      "I agree with the Chief Justice that the findings of fact of the appeal board indicate that this was a claim for further compensation due to another injury which occurred at the same time as the original accident, rather than a subsequent development from the original injury (cf., Morgan v Lloyds Builders, Inc, 344 Mich 524) or a change in physical condition after the original adjudication (cf., White v Michigan Consolidated Gas Co., 352 Mich 201).” 356 Mich at 531-532.

        See Hlady v Wolverine Bolt Co, 325 Mich 23; 37 NW2d 576 (1949). We intimate no view on the correctness of the Baldwin decision; a consideration of its validity must await the proper case.

       Prior to the amputation, plaintiff’s other leg was essentially useless due to a polio disability.

       The Baldwin opinion states that the one-year-back rule is a limit on the Workman’s Compensation Bureau’s authority to award benefits, not a statute of limitations. That statement is incorrect but it does not affect the substantive holding in Baldwin. See White v Michigan Consolidated Gas Co, 352 Mich 201; 89 NW2d 439 (1958).

       The dictionary definition of "further” is "going or extending beyond what exists. Additional”. Webster’s Third International Dictionary (1965 Edition).

       Of course, the additional compensation may not extend back one year where the date of “total and permanent disability” commences less than one year back from the date of the application for benefits therefor. The principal advantage in seeking a determination of total and permanent disability is that, if successful, the Second Injury Fund is required to pay differential benefits. MCL 418.521(2); MSA 17.237(521)(2).

       The WCAB found that the two-year-back rule applied and held that plaintiff was entitled to differential benefits beginning two years before the filing of his application.


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

text:
    PEOPLE v TAYLOR (ON REMAND)
    Docket No. 77-3315.
    Submitted November 3, 1976, at Lansing.
    Decided May 23, 1978.
    Diane Taylor was convicted by a jury of first-degree murder, Jackson Circuit Court, Gordon W. Britten, J. Defendant appealed, contending that the prosecution had not presented sufficient evidence of premeditation and deliberation to support the conviction of first-degree murder. The Court of Appeals, in a memorandum opinion, affirmed. Defendant applied for leave to appeal to the Michigan Supreme Court. The Supreme Court ordered the case remanded to the Court of Appeals as on leave granted to consider the adequacy and accuracy of the instructions on first-degree murder, 401 Mich 806 (1977). On remand, held:

    The instructions to the jury on first-degree murder were adequate and accurate, despite the fact that the word "deliberation” had not been used, where the trial court’s instructions to the jury did give an appropriate definition of "deliberation” and the jury was adequately informed.
    Affirmed.
    Homicide—Murder—First-Degree Murder—Instructions to Jury —Deliberation—Premeditation.
    Instructions to the jury, in a first-degree murder case, which are less than perfect in that they do not contain the "magic” word "deliberation” are sufficient where a close examination of the instructions indicates that an appropriate definition of "deliberation” was given and that the jury was adequately informed that they had to find that the defendant premeditated and deliberated before she could be found guilty of first-degree murder.
    References for Points in Headnote
    40 Am Jur 2d, Homicide § 501.
    Instruction as to presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.
    Instructions as to presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      McFarland, Schmier, Stoneman & Singer, for defendant on appeal.
    Before: Danhof, C. J., and M. J. Kelly and D. E. Holbrook, Jr., JJ.
   On Remand

D. E. Holbrook, Jr., J.

On February 24, 1975, defendant was convicted by a circuit court jury of first-degree murder contrary to MCL 750.316; MSA 28.548. Defendant appealed that conviction as of right to this Court raising the single contention that the people had not presented sufficient evidence of premeditation and deliberation to support the conviction for first-degree murder. In a memorandum opinion we affirmed defendant’s conviction having found sufficient evidence to support the verdict. Defendant then applied for leave to appeal to the Michigan Supreme Court. On August 31, 1977, the Supreme Court ordered the case "REMANDED to the Court of Appeals as on leave granted to consider the adequacy and accuracy of the instructions on first degree murder”, 401 Mich 806 (1977). Thus superseded, in this case, is the normal rule that appellate review of these unobjected to instructions would be precluded by GCR 1963, 516.2.

In the instant case the trial court instructed the jury as to first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter, not guilty by reason of insanity, and not guilty verdicts. The trial court defined murder and then instructed:

"If you come to the conclusion that the Defendant is guilty of murder, as I have defined it, it will be your duty to determine whether she is guilty of murder in the first degree, or murder in the second degree. The difference between murder in the first degree, and murder in the second degree is this. Murder in the first degree is a killing done wilfully and with premeditation. While murder in the second degree, the element of premeditation is absent.
"To convict the Defendant of murder in the first degree, it must appear that the killing was wilful and premeditated. It is not necessary that any definite period of time should have elapsed between the forming of such intention, and the striking of the blow which killed the deceased, providing the blow was premeditated, and the Defendant acted wilfully. On the other hand, if the killing was done under a sudden impulse, with malice, without premeditation, or previously formed intention, the offense would be murder in the second degree. As I have stated before the difference between the two offenses is that murder in the first degree, the element of premeditation is present, while in murder in the second degree, the element of premeditation is not present.”

The Court then elaborated on "premeditation” and then instructed the jury:

"If you believe from the testimony, beyond a reasonable doubt, that the Defendant at the time charged in the Information, being of sound mind, wilfully and unlawfully killed Lila Edwards with malice aforethought, either expressed or implied, under the definitions as I have given you; that is, that she had thought the matter out, and reached a conclusion, regardless of the length of time during which she entertained it, that she would kill Lila Edwards, or would inflict upon her some great bodily harm, less than the crime of murder, but with which from the nature of the instrument and the manner of its use might seriously involve the life of T.ila Edwards, then your verdict should be that she is guilty of murder in the first degree.” (Emphasis supplied.)

While the instructions are less than perfect they are sufficient to support defendant’s conviction for first-degree murder. It is true the trial court did not use the "magic” word "deliberation”, but a close examination of the trial judge’s instructions indicates that an appropriate definition of "deliberation” was given. In People v Vail, 393 Mich 460, 468-469; 227 NW2d 535 (1975), the Supreme Court quoted with approval from then Judge Levin’s opinion in People v Morrin, 31 Mich App 301, 328-330; 187 NW2d 434 (1971):

"to deliberate is to measure and evaluate the major facets of a choice or problem.”

We conclude that this definition, to a lay juror, is little different than the language used by the trial judge—"that she had thought the matter out, and reached a conclusion”.

While it is clearly preferable for the judge to use the term "deliberate”, we believe the court’s instructions in this case adequately informed the jury that they had to find that the defendant premeditated and deliberated before she could be found guilty of first-degree murder.

We also conclude that the trial judge correctly instructed that "malice” was a permissible inference and that the malice instruction was similar to instructions upheld in People v Rosemary Gibson, 71 Mich App 543, 551-554; 248 NW2d 613 (1976), lv den, 400 Mich 854 (1977), and People v Fabian, 77 Mich App 52, 58; 257 NW2d 673 (1977).

Affirmed.


text:
    PEOPLE v THATCHER
    Docket Nos. 77-4281, 77-4282.
    Submitted April 3, 1978 at Grand Rapids.
    Decided May 23, 1978.
    Fred Thatcher was charged with possession of heroin and carrying a concealed weapon. Prior to that charge he was arrested as he was entering an automobile and a search of the defendant and the vehicle revealed a tinfoil packet containing heroin and an automatic pistol. Defendant filed a motion to suppress evidence on the basis of an invalid arrest and illegal search and seizure. The motion was denied by Thomas C. Megargle, J., Branch Circuit Court. Defendant appeals. Held:

    The facts and circumstances of this case would lead a reasonably prudent person to the honest belief that a felony had been committed and that defendant participated therein; therefore, there was probable cause to arrest and the trial judge did not abuse his discretion in denying defendant’s motion to suppress evidence.
    Affirmed.
    D. C. Riley, J., dissents on the ground that the evidence leads to the conclusion that the police officers had no more than a mere suspicion that defendant was involved in a drug transaction and suspicion is not probable cause; furthermore, because the arrest was invalid and the search illegal, it was an abuse of trial court discretion to deny defendant’s motion to suppress evidence.
    Opinion of the Court
    1. Appeal and Error—Arrest—Criminal Law—Probable Cause— Discretion.
    Once a trial court has found probable cause for an arrest the Court of Appeals will overturn such a ruling only where an abuse of discretion is shown.

      References for Points in Headnotes

       5 Am Jur 2d, Arrest § 49.
    What constitutes probable cause for arrest—Supreme Court cases. 28 L Ed 2d 978.

       5 Am Jur 2d, Arrest §§ 16, 24, 32, 44 et seq.

       29 Am Jur 2d, Evidence §§ 415, 531.
    Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.

      2. Arrest—Criminal Law—Searches and Seizures—Probable Cause—Prudent Person Test.
    Probable cause for a police officer to arrest and seize evidence exists where facts and circumstances would lead a reasonably prudent person to the honest belief that a felony had been committed and that the defendant participated therein.
    Dissent by D. C. Riley, J.
    3. Arrest—Criminal Law—Probable Cause—Legality—Facts of Case.

      Probable cause and the legality of an arrest is a determination which relies heavily on the facts of a particular case.

    4. Arrest—Without Warrant—Probable Cause—Valid Arrest— Searches and Seizures—Poisonous Tree—Plain View Rule —Evidence—Admissibility.

      An arrest without a warrant cannot be sustained on suspicions not amounting to probable cause; if an arrest is invalid, evidence found in a search incident to that arrest must be suppressed as a ’’fruit of the poisonous tree”; in an instance where the arresting officers are not in a place where they have a right to be, the evidence seized under the ’’plain view” exception to the warrant requirement is inadmissible because the arrest is illegal.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John L. Livesay, Prosecuting Attorney, for the people.

      Kenneth A. Birch, for defendant.
    Before: R. B. Burns, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

Defendant was arrested on October 14, 1976, as he was entering an automobile in a municipal parking lot in Coldwater, Michigan. A search of the defendant and the vehicle he was about to enter revealed a tinfoil packet containing heroin and an automatic pistol. Defendant was charged with possession of a controlled substance, to-wit: heroin, contrary to MCL 355.341(4)(a); MSA 18.1070(41)(4)(a), and carrying a concealed weapon, contrary to MCL 750.227; MSA 28.424.

Before trial, defendant filed a motion to suppress the heroin and the pistol on the basis that the police officers lacked probable cause to arrest defendant and, therefore, the evidence seized pursuant to the unlawful arrest was inadmissible at trial. This motion was denied. Defendant now appeals by leave granted challenging the validity of this ruling.

The crux of defendant’s argument on appeal can be set forth in one rather simple sentence. Did the police officers have probable cause to arrest defendant?

Our review of the record leads us to answer the aforementioned question in the affirmative. Admittedly, the factual situation in the instant matter presents a close case as to the existence of probable cause. However, once the trial court has found probable cause for an arrest, we will only overturn such a ruling when an abuse of discretion is shown. People v Langston, 57 Mich App 666; 226 NW2d 686(1975).

In the instant case, defendant was driving an automobile which had been used in an "undercover” drug buy earlier in the day. The undercover officers were still attempting to locate the money they had used to purchase the drugs. Defendant reacted in a suspicious manner when passing the officers’ vehicle. The arresting officers had sufficient information to believe that the missing money was in the car.

These facts and circumstances would lead a reasonably prudent person to the honest belief that a felony had been committed and that defendant participated therein. See People v Langston, supra, at 675.

Accordingly, we find no abuse of discretion on the part of the trial court in denying defendant’s motion to suppress the evidence.

Affirmed.

R. B. Burns, P. J., concurred.

D. C. Riley, J.

(dissenting). As the majority states, the sole question on appeal concerns the legality of defendant’s arrest. My review of the evidence presented at the preliminary examination leads me to conclude that the police did not have probable cause to arrest.

Because a probable cause determination relies so heavily on the facts of the particular case, I feel the necessity of reciting the facts available to the trial judge in more detail than is set forth in the majority opinion.

Undercover narcotics officers arranged a drug purchase. They proceeded to a house trailer in the company of one Vicki Diamond, who was unaware of the officers’ identity. At the trailer they met Charles Blanton and gave him a marked amount of money, which he took into the trailer. When he returned Blanton attempted to call a person called "Earthworm” on the CB radio located inside of a brown Chevrolet Nova parked near the trailer. When the CB radio did not function correctly, Blanton yelled to his wife inside of the trailer to "call Chick”.

Blanton instructed Vicki to drive to a particular intersection where she would receive the drugs. After Vicki and one of the officers left to pick up the drugs, the remaining officers saw a woman leave the trailer carrying a brown paper bag. They asked Blanton if "that was íiow the money’s getting out of here”, to which Blanton responded affirmatively. The woman drove away from the scene in a small blue-green or brownish-green car, but not the Nova.

Vicki Diamond and the third officer returned with the drugs, and then Vicki and all of the officers left. Shortly thereafter, Vicki was arrested and the officers proceeded back toward the location of the trailer. En route they passed defendant driving the brown Nova, followed by a police surveillance car. The surveillance team had seen defendant drive the Nova away from the trailer’s location.

The surveillance car was ordered to follow defendant. While watching the car the surveillance officers were informed by the undercover officers that the car had been used in the drug transaction and that the marked money might be in the car. On the basis of this information they arrested defendant. A search of defendant’s person revealed the heroin in question and the gun was found, subsequent to his arrest, in a brown paper bag one officer spotted protruding from beneath the front seat of the Nova.

In addition to the two counts in the present case, defendant was also charged as an aider and abettor to the drug sale. This charge was dismissed when the examining magistrate held that there was insufficient evidence to show probable cause that defendant aided in the transaction.

On the totality of this evidence I cannot find that the police had probable cause to arrest defendant for delivery of a controlled substance. Defendant was never identified as being at the trailer when the transaction was evolving. He was not seen by any of the witnesses prior to the time he was spotted driving the Nova. The car was not involved in the transaction other than Blanton’s aborted attempt to use the CB radio. The purpose of the CB call was itself ambiguous since the call was never completed. No drugs or money were ever directly placed in the Nova.

It appears that the primary reason that the Nova was stopped, and defendant arrested, was the officers’ feelings that the marked money might be in the car. However, the officers were told by Blanton that the money was leaving with the woman in a different car. In fact, the surveillance team was initially informed that the money was being removed by a woman in a green or brown car.

Given this testimony, I find that the officers had no more than a mere suspicion that defendant was involved in the drug transaction. A warrantless arrest cannot be sustained on suspicions not amounting to probable cause. People v Falconer, 76 Mich App 367; 256 NW2d 597 (1977), People v Reeves, 23 Mich App 183; 178 NW2d 115 (1970). If an arrest is invalid, evidence found in a search incident to that arrest must be suppressed as a "fruit of the poisonous tree”. Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969). Likewise, if an arrest is illegal, the arresting officers are not in a place where they have a right to be, so that evidence seized under the "plain view” exception to the warrant requirement is inadmissible. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), People v Whalen, 390 Mich 672; 213 NW2d 116 (1973).

I would find that the trial court’s denial of the motion to quash, as described by the majority, was an abuse of discretion. As I have previously con-eluded, the Nova was not used in the transaction to any relevant extent. While the officers were attempting to locate the money, their best (and only) real evidence as to its whereabouts precluded a belief that it was in the Nova. Defendant’s "suspicious manner” when he noticed the surveillance car was so equivocal that the trial judge expressly noted that it played no part in his decision. These factors do not lead to the conclusion that the officers had probable cause to believe that the money was in the Nova. It is interesting to note that while the trial court’s opinion relates most of the preliminary examination testimony, it neglects to mention at any point Blanton’s affirmative response to the question of whether the woman was leaving with the money.

I would reverse the trial court’s decision and suppress the evidence of the heroin and the gun, and accordingly release defendant.


author: Per Curiam. N. J. Kaufman, J.

text:
    PEOPLE v CAGE
    Docket No. 30213.
    Submitted October 13, 1977, at Detroit.
    Decided May 23, 1978.
    Gary Cage was convicted of armed robbery, Recorder’s Court of Detroit, James Del Rio, J. Defendant appeals, contending that the trial court erred in allowing the prosecution to introduce evidence of his prior conviction for attempted use of a stolen credit card to impeach him when he took the witness stand. Defendant also contends that the verdict was against the great weight of the evidence. Held:

    1. The offense of attempted use of a credit card is a “high” misdemeanor and as such may be used for impeachment purposes.
    2. A defendant must move the trial court for a new trial in order to preserve for appeal the claim that the verdict was against the great weight of the evidence.
    Affirmed.
    N. J. Kaufman, J., dissented and would hold that the defendant’s conviction should be reversed because of the prosecution’s use of the defendant’s prior misdemeanor conviction to impeach the defendant.
    Opinion of the Court
    1. Criminal Law—Evidence—Impeachment—Prior Convictions— Misdemeanors—Attempted Use of Stolen Credit Card.
    Impeachment of a criminal defendant, who takes the witness stand, by means of a prior conviction of attempting to use a stolen credit card, which is a misdemeanor punishable by a prison term of not more than two years, is not improper because the term "misdemeanor” in the rule which prohibits the use of prior misdemeanor convictions for impeachment purposes is a synonym for violations of municipal ordinances; impeachment should be permissible by use of prior convictions' based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed "felony” or "misdemeanor”.

      References for Points in Headnotes

       81 Am Jur 2d, Witnesses §§ 569, 571, 581, 582.

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

      2. Appeal and Error—Criminal Law—Weight of Evidence—New Trial—Motions.
    A defendant may not raise on appeal the issue that his conviction was against the great weight of the evidence where he has not filed a motion for a new trial with the trial court.
    Dissent by N. J. Kaufman, J.
    3. Criminal Law—Evidence—Impeachment—Prior Convictions— Misdemeanors—Attempted Use of Stolen Credit Card.

      It is improper to use a criminal defendant’s prior misdemeanor convictions to impeach the defendant’s credibility if he chooses to take the witness stand; therefore, it was improper for a trial court to allow the prosecution to impeach a defendant by introducing evidence of the defendant’s prior conviction for attempted use of a stolen credit card because that offense is a misdemeanor, not a felony.

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

      Solomon & Stern, for defendant on appeal.
    Before: D. E. Holbrook, P. J., and N. J. Kaufman and J. E. McDonald, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment

   Per Curiam.

Defendant, charged with armed robbery (MCL 750.529; MSA 28.797), was tried and found guilty by a jury. Following sentence, defendant appeals on grounds that the trial court erred in allowing use of prior convictions for impeachment purposes, claiming that one of the prior convictions was for a misdemeanor. Defendant also appeals on the ground that the verdict of the jury was against the great weight of the evidence.

The specific prior conviction in question was that of attempting to use a stolen credit card, punishable by a prison term of not more than 2 years under MCL 750.92; MSA 28.287, as a circuit court, or "high” misdemeanor.

In People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court, in reviewing the question of impeachment by prior convictions, said:

"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 disqualified 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.
"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.
"We do not hesitate in this case to prohibit the further use of municipal ordinance or misdemeanor convictions used by the prosecution solely for impeachment purposes.” 392 Mich 53, 55.

A careful reading of Renno, supra, reveals that the word "felony” is not used or defined in the opinion and that the only time the word "misdemeanor” is used in the entire opinion is in the above quotation. We have no hesitancy in assuming that as used in Renno, supra, "misdemeanor” is meant to be a synonym for violations of municipal ordinances and nothing more.

We find this interpretation to be further buttressed by this language in People v McMillan, 68 Mich App 113, 123; 242 NW2d 518 (1976).

"We do not think that, in Michigan, the term 'infamous crime’ can necessarily be equated with the term 'felony’. In Attorney General v Montgomery, 275 Mich 504, 513; 267 NW 550 (1936), our Supreme Court defined an infamous crime as follows:
" 'Whether a crime is infamous or not is not determined by the nature of the offense (2 Bouvier’s Law Dictionary [Rawle’s 3d Rev] p 1553, 1554), but by the consequences to the individuals by the punishment prescribed for such offense. Butler v Wentworth, 84 Me 25 (24 ATL 456, 17 L.R.A. 764). Crimes subject to infamous punishments are infamous crimes, and the term "infamous crime” means any crime punishable by imprisonment in the state prison.’ (Citations omitted, emphasis supplied.)
"It would then appear that under Montgomery, supra, impeachment should be permissible by use of prior convictions based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed 'felony’ or 'misdemeanor’.”

And further at 124-125:

"The Legislature has broken misdemeanors into two categories, some punishable by imprisonment in the state prison (see e.g. MCLA 750.414; MSA 28.646) and some punishable by a maximum of 90 days in the county jail, MCLA 750.504; MSA 28.772. We think that it would both be more logical and more in spirit with the holding of Montgomery supra, if the rule of Renno was limited to those crimes carrying a maximum of 90 days in the county jail.” (Emphasis in original.)

Had the Supreme Court intended to include high misdemeanors or crimes with sentences greater than one year, it certainly could have, but declined to do so, for leave to appeal McMillan was denied. 399 Mich 825 (1977).

The decision by the trial court in the instant case, to permit impeachment by means of the conviction of attempting to use a stolen credit card, was not error. People v Renno, 392 Mich 45; 219 NW2d 422 (1974), People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), lv den, 399 Mich 825 (1977).

Defendant’s claim that the verdict was against the great weight of the evidence is not properly before this Court as defendant has not moved for a new trial as is required to preserve the issue for review. People v Mattison, 26 Mich App 453, 459; 182 NW2d 604 (1970), People v Towns, 69 Mich App 475, 476; 245 NW2d 97 (1976).

Affirmed.

N. J. Kaufman, J.

(dissenting). I must respectfully dissent.

The conviction which prompts my disagreement with the majority opinion is attempted use of a stolen credit card. Use of a stolen credit card is prohibited by MCL 750.157q; MSA 28.354(16), providing as follows:

"Any person who delivers, circulates or sells a credit card which was obtained or is held by such person under circumstances which would constitute an offense under sections 157n or 157p, or uses or permits or causes or procures the same to be used, delivered, circulated or sold, knowing the same to be obtained or held under circumstances which would constitute an offense under sections 157n or 157p, shall be guilty of a felony.”

Since MCL 750.157q; MSA 28.354(16) does not contain a penalty provision, reference must be had to MCL 750.503; MSA 28.771, wherein it is provided:

"A person convicted of a crime declared in this or any other act of the state of Michigan, to be a felony, for which no other punishment is specially prescribed by any statute in force at the time of the conviction and sentence, shall be punished by imprisonment in the state prison for not more than 4 years or by a fine of not more than 2,000 dollars, or by both such fine and imprisonment.”

Therefore, a violation of MCL 750.157q; MSA 28.354 (16) is punishable by a term of imprisonment of not more than four years; and, under MCL 750.92; MSA 28.287, the crime of attempted use of a stolen credit card is thus a misdemeanor.

In this case, defense counsel objected on two occasions, both prior to defendant taking the stand, to the prosecutor’s suggestion that attempted use of a stolen credit card constituted a felony. The trial court agreed with the prosecutor.

I would hold that the trial court erred in determining that attempted use of a stolen credit card was a felony. Accordingly, I would hold that under People v Renno, 392 Mich 45; 219 NW2d 422 (1974), use of that misdemeanor conviction for impeachment purposes is forbidden.

I do not believe that this Court can validly distinguish between so-called types of misdemeanors. The Supreme Court clearly stated "misdemeanor convictions”. Had the Supreme Court wanted to exclude high misdemeanors or crimes with sentences greater than one year, it certainly could have done so, as was done in MRE 609(a)(1).

I would reverse defendant’s conviction and remand for a new trial._ Plaintiff Laura Smith appeals from an order of the Wayne County Circuit Court affirming the decision of the Court of Common Pleas which granted defendant Highland Park Board of Education’s motion for summary judgment.

       Supporting the above interpretation of Renno, MRE 609 continues the avoidance of the felony-misdemeanor morass. See Robinson, James K., and John W. Reed, A Review of the Proposed Michigan Rules of Evidence, 56 Michigan State Bar Journal 21, 30 (January, 1977).

       In pertinent part, MCL 750.92; MSA 28.287 states:
      "3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed 1/2 of the greatest punishment which might have been inflicted if the offense so attempted had been committed.”

       I acknowledge that it was defense counsel who elicited evidence of the misdemeanor conviction. However, I agree with the resolution that People v Peabody, 37 Mich App 87, 89-90; 194 NW2d 532 (1971), adopted to meet this situation:
      "To hold that a defendant’s lawyer opens the door by adverting to a defendant’s prior conviction record during direct examination would confront defendants and their lawyers with an unnecessary dilemma: whether to reveal a prior record on direct examination and thereby open the door to inquiry otherwise impermissible, or to leave it to the prosecutor to bring out the record for the first time on cross-examination. A defendant should not be penalized because his lawyer seeks to soften the unfavorable impact on the jury of his client’s conviction record by bringing it out himself rather than standing by so that the prosecutor can belabor it on cross-examination.” (Emphasis supplied.)

       I further note that with the adoption of MRE 609, the felony-misdemeanor distinction is unimportant because "the crime involved theft, dishonesty, or false statement, regardless of the punishment”. MRE 609(a)(1). Nevertheless, were defendant to get a new trial, the trial court would still have to determine "that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect”. MRE 609(a)(2).


author: Per Curiam.

text:
    SMITH v HIGHLAND PARK BOARD OF EDUCATION
    Docket No. 31395.
    Submitted April 21, 1978, at Detroit.
    Decided May 23, 1978.
    Plaintiff Laura Smith was employed as a teacher by defendant Highland Park Board of Education from 1964-1969, acquiring tenure. She applied for and received a personal leave of absence without pay for the school year 1969-1970. At the end of that leave she timely notified defendant of her intention to resume teaching the following fall. When the board failed to offer her a position in reinstatement, plaintiff requested an extention of her leave which the board denied. Plaintiff filed a grievance pursuant to the master contract which was denied by the board. Plaintiff then appealed to advisory arbitration. The arbitrator awarded reinstatement but determined that no salary credit was appropriate and that no further relief was warranted. On January 17, 1972, plaintiff accepted a teaching offer of the board and returned to teaching January 31, 1972. Plaintiff then filed suit in the Wayne Circuit Court for back pay for the 1970-1971 school year and for the first half of the 1971-1972 school year. The suit was removed to the Court of Common Pleas. The court, Donald L. Hodson, J., found that plaintiff was estopped from going forward with legal action by her acceptance of the job with the board and that the arbitrator’s award did not exceed his authority. The Wayne Circuit Court, George T. Martin, J., affirmed. Plaintiff appeals by leave granted. Held:

    1. A party who accepts a benefit under a nonbinding arbitration award accepts the award in toto and is estopped from denying its validity and binding effect.
    2. A 'nonbinding arbitration award which exceeds the arbitrator’s authority is a nullity as to that part which so exceeds the authority and may properly be severed from that portion of the award which is valid.
    3. A party to a nonbinding arbitration award who has accepted the award is not estopped from denying that portion of the award which exceeds the arbitrator’s authority.

      References.for Points in Headnotes

       5 Am Jur 2d, Arbitration and Award § 183.

       5 Am Jur 2d, Arbitration and Award §§ 136, 167, 168.

       5 Am Jur 2d, Arbitration and Award §§ 137, 150.

      Remanded for further proceedings.
    1. Arbitration and Award—Estoppel—Validity of Award.
    A party to a nonbinding arbitration award who has profited by accepting a benefit of that award is estopped from denying the award in its entirety; that part which is unfavorable cannot be disclaimed.
    2. Arbitration and Award—Estoppel—Validity of Award—Scope of Award—Authority of Arbitrator.
    A party who accepts a nonbinding arbitration award outside the scope of the agreement to arbitrate is not estopped from denying that portion of the award which exceeded the arbitrator’s authority.
    3. Arbitration and Award—Scope of Award—Authority of Arbitration—Validity of Award—Severance of Award.
    An arbitration award which exceeds the arbitrator’s authority is not totally invalid but is a nullity only to the extent it exceeds that authority; it is proper to sever that portion which is a nullity from the remainder of the award.

      Evan Karabetsos, for plaintiff.

      Hall & Andary, P. C., for defendant.
    Before: D. F. Walsh, P. J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

Smith was a tenured teacher. In 1969, pursuant to the master contract between defendant and the Highland Park Federation of Teachers, she applied for and was granted a personal leave of absence without pay for the 1969-1970 school year. On February 14, 1970, Smith filed a timely request for reinstatement for the fall of 1970. After the board failed to offer a position in reinstatement, the plaintiff requested an extension on her leave. Defendant denied the request and informed Smith that she would be considered for employment if a vacancy occurred.

On February 1, 1971, plaintiff filed a grievance pursuant to the master contract. In March, 1971, Smith was offered a midyear teaching vacancy at the Barber School, which she declined, partially because of her commitment to her then existing employment and partially because of the possible effect on the pending grievance.

Smith’s grievance was ultimately denied on April 27, 1971, by the Board of Education. Plaintiff then appealed to advisory arbitration by counsel of her union. In a December 29, 1971 award, the arbitrator gave plaintiff reinstatement but determined no salary credit was appropriate for the 1969-1970 or 1970-1971 school years. He stated no further relief (other than reinstatement) was warranted.

On January 17, 1972, plaintiff accepted a position team-teaching at the Barber Middle School. She began working on January 31, 1972.

In April, 1973, plaintiff filed suit in Wayne County Circuit Court seeking back pay for the 1970-1971 school year and for the first half of the 1971-1972 school year. The cause was removed to the Court of Common Pleas where plaintiff presented her case and defendant filed a motion for summary judgment.

On February 20, 1976, the court found that plaintiff was estopped from going forward with legal action by her acceptance of a job with the board, pursuant to the arbitrator’s award. Judge Hobson held that the arbitrator in denying back pay did not exceed the scope of his authority. Smith was required either to accept the arbitration award in its entirety or reject the award in its entirety, but she. could not accept it in part and reject it in part. Plaintiff, the court decided, had no cause of action against defendant.

Plaintiff appealed this decision to the Wayne County Circuit Court which affirmed the. Court of Common Pleas in a decision adopting the opinion below.

We deal first with the issue of estoppel: did plaintiffs acceptance of defendant’s offer of reinstatement constitute an acceptance of an advisory arbitral award which plaintiff was then estopped from disavowing?

The grievance procedure of the Master Contract in Part VII, § 7.2, step 5 provides with respect to arbitration:

"The arbitrator’s decision shall be advisory only and shall not be binding upon any party. The arbitrator shall confine his opinion to the sole question of whether or not there has been a violation of this Agreement or whether any disciplinary action was unjust or improper. He shall give no opinion with respect to any matter left by this Agreement or by law to the discretion of the Board or administration.” (Emphasis supplied.)

Were we to find the arbitration pursued through this step of the grievance procedure binding ab initio, we would divest the very language of the agreement of any meaning or significance. We cannot say that the parties entered into a binding arbitration without contradicting the terms of the master contract.

But the circumstances in this case comprehend more than the undertaking of the arbitration process. Plaintiff Smith accepted the arbitrator’s award by accepting the defendant’s offer of reinstatement and returning to work.

"The law does not permit one party to an [arbitration] award to profit by its execution by the other party, and then repudiate it.” Taylor v Smith, 93 Mich 160, 163-164; 52 NW 1118 (1892).

While Taylor v Smith, supra, is factually distinguishable from the present case, the theory of estoppel it espouses is applicable here. No one should be allowed to accept the fruits of an arbitrator’s award and then dispute its validity. Newman v Avco Corporation-Aerospace Structures Division, 451 F2d 743 (CA 6, 1971). Even if the original status of the arbitration is simply advisory, once the award is accepted, it must be accepted as a whole: that part which is unfavorable cannot be disclaimed.

"[A] party who accepts payment in satisfaction of a voidable award, or of anything done by the opposite party in part performance of such award, or receives fruits thereof, will be held to have ratified the same and to be estopped from thereafter questioning its validity or refusing to perform its terms.” Ames Canning Co v Dexter Seed Co, 195 Iowa 1285, 1292; 190 NW 167 (1922); Taylor v Smith, supra. 5 Am Jur 2d, Arbitration and Award, § 183, p 653.

The underlying rationale of arbitration, i.e., the final resolution and settlement of disputes between parties to a contract or transaction, supports the concept that, though advisory in its inception, once accepted the award of a nonbinding arbitration becomes binding in toto and a matter settled. The award derives its legal conclusiveness not from the terms of a contract whereby the parties agree to submit the dispute to advisory arbitration, but from the fact of its acceptance by the parties.

"Equitable considerations under the doctrine of estoppel argue strongly against allowing a litigant to make full use of arbitration up to the point of acceptance of the award (reinstatement to his job) and then permitting him to sue in another forum for the backpay which the arbitrator denied.” Newman v Avco Corporation-Aerospace Structures Division, supra, at 749.

Such would be the result in the present case but for one factor. The arbitrator derives his or her power solely from the agreement between the parties and the agreement is the law of the case. Acme Cut Stone Co v New Center Development Corp, 281 Mich 32; 274 NW 700 (1937), Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975). An arbitrary award outside of the scope of the agreement of arbitration is not binding on anyone, because it has no legal sanction. Stowe v Mutual Homebuilders Corp, 252 Mich 492; 233 NW 391 (1930).

The arbitration agreement, Part VII, § 7.2, step 5, states:

"The arbitrator shall confine his opinion to the sole question of whether or not there has been a violation of this Agreement or whether any disciplinary action was unjust or improper. He shall give no opinion with respect to any matter left by this Agreement or by law to the discretion of the Board or administration.”

In denying plaintiff all relief other than reinstatement, the arbitrator exceeded the scope of his authority. Whether or not plaintiff was entitled to back pay for defendant’s failure to reinstate her upon request after her leave of absence without pay is not an issue over which the arbitrator had power to exercise authority. That issue is not, through any expansion of the contract language, a question of whether or not the board violated the agreement or took unjust or improper disciplinary action against Smith. The arbitration agreement does not authorize the arbitrator to determine what relief is appropriate upon a finding that the agreement has been violated or that certain disciplinary action was unjust or improper.

In cases in which an arbitrator has exceeded his or her authority, in which, thereby, a part of the award becomes a nullity, the award is not totally invalid. It is proper to sever that portion which is a nullity from the remainder of the award. Carr v Kalamazoo Vegetable Parchment Co, 354 Mich 327; 92 NW2d 295 (1958), E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221; 230 NW2d 556 (1975).

Plaintiff, in accepting the arbitrator’s award, and thus binding herself as to its entirety, could not bind herself to that part which was invalid by reason of the fact that it exceeded the scope of the arbitrator’s authority. Therefore, while plaintiffs acceptance of the award gave it legal conclusiveness, as with all arbitration awards, it was legally conclusive only insofar as it was valid. Since it was not valid (and thus not conclusive) as to the denial of back pay, plaintiff has a cause of action for back pay in the courts. The motion for summary judgment should not have been granted.

Remanded for proceedings consistent with this opinion. On remand, we suggest that the trial court examine closely the issue, if any, of plaintiffs mitigation of damages through her interim employment and the possibility that any award rendered reflect such mitigation. We retain no further jurisdiction.