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

text:
    KOZIARSKI v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 77-4438.
    Submitted June 20, 1978, at Detroit.
    Decided September 21, 1978.
    Plaintiffs Diane Koziarski and Tanya Sharon are Aid to Families with Dependant Children benefit recipients who live together in a single family residence. The Department of Social Services refused to allow them a shelter allowance greater than that permitted for a single family. An administrative hearing was held at which the administrative law judge upheld the department’s decision. Plaintiffs’ sought judicial review and the Wayne Circuit Court, George T. Martin, J., affirmed. Plaintiffs appeal. Held:

    The rule in Michigan that where two or more families receiving AFDC benefits live together the maximum shelter allowance to be granted the families together is the maximum allowance available to one single family is not violative of Federal laws and regulations governing the AFDC program and is not violative of the constitutional requirement of equal protection of the laws.
    Affirmed.
    1. Paupers — AFDC Benefits — Shelter Allowances — Federal Regulations.
    States have considerable latitude in determining their respective level of welfare benefits; máximums on the amount of welfare assistance are permissible due to the finite resources available and the state interest in maintaining fiscal responsibility.
    2. Paupers — AFDC Benefits — Shelter Allowances — Two Families Living Together — Federal Regulations.
    The rule in Michigan that where two or more families receiving AFDC benefits live together the maximum shelter allowance to be granted the families together is the maximum allowance available to one single family is not violative of Federal laws and regulations governing the AFDC program; this rule makes no presumption of income contribution by one family to the other.

      References for Points in Headnotes
    [1] 79 Am Jur 2d, Welfare Laws § 45.
    [2] 79 Am Jur 2d, Welfare Laws § 21.
    [3] 79 Am Jur 2d, Welfare Laws § 18.
    [4] 79 Am Jur 2d, Welfare Laws §§ 4, 21.

      3. Paupers — Welfare Benefits — Federal Regulations — Uniformity Requirement.
    Federal regulations require state welfare disbursements to be uniform, which means that they be applied the same way throughout the state; this regulation does not preclude the state from giving some welfare recipients more money than others, provided it is done on some reasonable and noninvidious basis and is done consistently throughout the state (45 CFR 233.20[a][3][viii]).
    4. Constitutional Law — Equal Protection — Paupers—Shelter Allowances — Two Families Living Together.
    A classification does not violate the Equal Protection Clause of the Constitution where it has a reasonable basis; the rule that two or more AFDC recipients living together shall receive shelter allowances in the aggregate no more than the maximum shelter allowance for a single family has a reasonable basis and is not violative of the Equal Protection Clause (US Const, Am XIV).

      Gregory L. Carr, Wayne County Neighborhood Legal Services, Inc., for plaintifFs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker, and Robert N. Rosenberg, Assistants Attorney General, for defendant.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   D. C. Riley, P.J.

This appeal challenges the manner in which "shelter allowances” are distributed by the Michigan Department of Social Services (DSS) in the administration of one segment of this state’s public welfare system.

Plaintiffs, Diane Koziarski and Tanya Sharon, single women each having one child, both receive AFDC grants. To gain the various economic benefits of a shared living arrangement, they decided to pool their individual shelter allowances ($110 per month each) and share a four bedroom, single family flat. However, the DSS refused to permit them a shelter allowance greater than the maximum allowed for a single family ($110 in Wayne County). Following an adverse administrative hearing decision, plaintiffs filed an appeal in Wayne County Circuit Court pursuant to MCL 400.37; MSA 16.437. From an order of that court affirming the decision below, they appeal as of right.

Plaintiffs do not challenge the maximum shelter grant limitation itself but rather attack the validity of the state’s policy which affords a single shelter allowance to two (or more) AFDC recipients sharing a single place of residence, contending separate allowances should be dispersed for each AFDC family living in the dwelling.

Specifically at issue is Item 322 of the Michigan Assistance Payments Manual, relied upon by the DSS and providing in pertinent part:

"APPLICATION OF SHELTER ALLOWANCE. The shelter allowance applies to the house, mobile home, room, or apartment in which the client lives and is granted for the purpose of meeting the cost of a specific living arrangement. Therefore, only one shelter allowance, up to the state shelter maximum, will be allowed for any living arrangement. When more than one client lives in the same living arrangement, the cost of the shelter requirement, up to the state maximum, may be granted to one client or divided between individual clients according to the conditions and limitations of this item.
"CLIENTS LIVING TOGETHER. When more than one client lives in the same house, mobile home, room, or apartment, a landlord-tenant relationship will not be recognized. Therefore, one client cannot pay rent to another. The cost of the shelter requirement, up to the state maximum, and the allowances for heating fuel and utilities for the combined eligible group, may be granted to one client or divided among individual clients, in whatever manner is agreeable. * * *
"An exception to this policy may exist when one client occupies a separate, identifiable unit in the home of another client, such as in a duplex or a home that has been remodeled to include multiple living arrangements. If the unit would normally be offered for rent, a shelter allowance, up to the state maximum, may be included in the client’s assistance budget.” (Emphasis added.)

It is initially alleged that the above rule violates Federal law and regulations governing the AFDC program and thus runs afoul of the Supremacy Clause of the U.S. Constitution, art VI, § 2. Specifically, plaintiffs rely on 45 CFR 233.20(a)(1) and 45 CFR 233.20(a)(3)(viii). The former provides, with respect to all categorical assistance programs including AFDC, the state plan must:

"Provide that the determiniation of need and amount of assistance for all applicants and recipients will be made on an objective and equitable basis and all types of income will be taken into consideration in the same way except where otherwise specifically authorized by Federal statute.”

The later provision requires that the state plan must:

"Provide that payment will be based on the determination of the amount of assistance needed and that, if full individual payments are precluded by máximums or insufficient funds, adjustments will be made by methods applied uniformly statewide.”

Plaintiffs maintain present Michigan practice does not conform with these requirements due to the absence of an equitably determined need of two separate families living in one household, and further, that such a policy is not uniformly applied throughout the state. With these contentions we cannot agree. Many cases have recognized that máximums on the amount of welfare assistance are permissible due to the finite resources available and the state interest in maintaining fiscal responsibility. Dandridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970), stands as primary authority recognizing the considerable latitude afforded the states in determining their respective level of welfare benefits. That case concerned Maryland’s AFDC maximum grant allotment of $250 per month. Large families with a proportionately greater need, it was argued, were not treated equitably because of such a restriction. In upholding the grant limitation, the Court stated:

"In King v Smith, supra, [392 US 309; 88 S Ct 2128; 20 L Ed 2d 1118 (1968)] we stressed the States’ 'undisputed power,’ under these provisions of the Social Security Act, 'to set the level of benefits and the standard of need.’ Id., at 334. We described the AFDC enterprise as 'a scheme of cooperative federalism,’ id., at 316, and noted carefully that '[t]here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.’ Id., at 318-319.” 397 US at 478.

The Dandridge Court further recognized that both the Department of Health, Education and Welfare which administers the Social Security Act, and Congress itself had expressly approved of family grant máximums. Dandridge, supra, at 481-482. In this regard, we note that Item 322 has also been approved by HEW, having been submitted as an amendment to the state plan.

In White v Dep’t of Social Services, 20 Mich App 481; 174 NW2d 315 (1969), this Court upheld a maximum limitation on an AFDC allowance although the amount received fell short of meeting the recipients’ actual and reasonable needs, stating that " * * * the amount of assistance granted must be determined in each case according to the standards prescribed * * * within the limits established by the state department on the basis of funds available”. (Emphasis added.) 20 Mich App at 484-485.

The language of Dandridge and White are analogous to the present case. The state had determined in Assistance Payments Manual Item 322 that the level of need of two families sharing the same residence does not justify giving each a full shelter allowance. The state has, in effect, set a maximum shelter allowance for two families sharing the same living quarters. That maximum is the amount permitted to one family in the same residence. Such a policy, despite the fact each family will receive a proportionately lesser shelter grant than if they had lived separately and in their own dwelling, fully comports with the guidelines enunciated in Dandridge and White. We emphasize it is not our province to second guess the appropriateness of the manner in which scarce public welfare funds are disbursed. We are not concerned with the wisdom of state policy, but whether it conforms in this case to federal regulatory requirements. As such we find no discrepancy.

Plaintiffs further contend that Gurley v Wohlgemuth, 421 F Supp 1337 (ED Pa, 1976), applies to the present case. In Gurley plaintiff and her sister had one and two children respectively. Both were receiving AFDC income. Pennsylvania utilized a "flat grant” method of calculating assistance payments with sharply diminishing incremental amounts for each additional person in the household. Since they were living together, the assistance grant was calculated on the basis of one "assistance unit” consisting of five persons rather than as two separate units (under which plaintiff would have received greater per capita amounts). The court ruled that in reducing payments made to two or more AFDC families living together, the state considered available as income to one recipient the AFDC payment to the other without proof of actual contribution, and therefore constituted an improper presumption of available income in violation of Federal regulations. 45 CFR 233.90.

The court further observed that where there was no legal obligation of support, an assumption that income earned by unrelated persons living in the household would be available for support of the child was impermissible. See Lewis v Martin, 397 US 552; 90 S Ct 1282; 25 L Ed 2d 561 (1970), King v Smith, 392 US 309; 88 S Ct 2128; 20 L Ed 2d 1118 (1968).

We find Gurley, supra, distinguishable from the facts at hand. Unlike the flat grant method of assistance in Gurley, where the entire welfare grant amount was controlled by a particular living arrangement, Michigan employs a budget process system where specific amounts are given for each of the recipient’s needs. Plaintiffs are essentially treated as two families of two persons each and are free to use their separate grants as they see fit. Thus, the only effect of Item 322 relates to their actual shelter need. The remainder of their grant remains unaffected, whether they live together or separately. Further, there is no presumption of income contribution for an AFDC family to another. Plaintiffs are cotenants and each is legally obligated to defray one-half the rental obligation. DSS is not required to presume that one plaintiff will use half the shelter allowance to benefit the other as each has incurred a respective legal duty. Plaintiffs’ allegation that Item 322 is not uniformly applied in contravention of 45 CFR 233.20(a)(3)(viii) is also without merit. They reason uniformity is lacking because of their receipt of only one shelter allowance, where, if living separately, they would receive two rental allotments. We interpret the regulation cited as requiring that state welfare disbursements be uniform (viz. applied the same way) throughout each county of the state. The state may, upon a reasonable and non-invidious basis, give some welfare recipients more money than others, provided they do so in a geographically consistent manner. The shelter standard, thus, is consistently applied statewise as each county is required to follow Item 322.

Plaintiffs’ final argument on appeal asserts that Item 322 violates the equal protection clause of the U.S. Constitution by reason of its differential treatment of AFDC families living together and those living apart. Dandridge v Williams, supra, reiterates the basic standard applicable to equal protection challenges in the social welfare area:

"In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,’ it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v Natural Carbonic Gas Co., 220 U.S. 61, 78. 'The problems of government are practical ones and may justify, if they do not require, rough accomodations— illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426.” 397 US at 485.

We accept the lower court’s finding of several "reasonable bases” supporting the constitutionality of Item 322, to wit, (1) the discouragement of overcrowded living conditions, accompanied by health and social hazards resulting from unrelated individuals living together under a single roof, (2) the elimination of unscrupulous landlords who might seize upon the availability of public funds to encourage multiple occupancy of rental units at an increased profit, and (3) conservation of resources which may be allocated to families totally without shelter. As was recognized in White v Dep’t of Social Services, supra, the state "has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program”. Id., at 485, quoting Shapiro v Thompson, 394 US 618, 633; 89 S Ct 1322; 22 L Ed 2d 600 (1969).

Plaintiffs’ reliance on United States Dep’t of Agriculture v Moreno, 413 US 528; 93 S Ct 2821; 37 L Ed 2d 782 (1973), is therefore unjustified. In Moreno the provision in the Food Stamp Act which excluded from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household was held to create an irrational classification in view of the stated purposes of the act. While the practical effect of Item 322 is to discourage the sharing, by welfare families, of a single residence, defendant here, unlike Moreno, provides rational reasons for such a policy.

Affirmed. No costs, a public issue being involved.

       Michigan, along with other states, participates in the Federal Aid to Families With Dependent Children program (AFDC), 42 USC 601 et seq., which originated with the Social Security Act of 1935, 49 Stat 620, as amended, 42 USC 301 et seq. Michigan participates pursuant to the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq. It provides grants to AFDC recipients in accordance with such actual needs, but imposes an upper limit on the amount an AFDC recipient can receive for certain portions of their grant, such as a shelter allowance.

       The first section of the AFDC program, 42 USC 601, provides that the act is:
      "For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as far as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection, * * * .” (Emphasis added.)
      In the Amendments of 1967, Congress added to 402(a) a subsection (23):
      "[The State shall] provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted. ’’ 42 USC 602(a)(23). (Emphasis added.)


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    CHALMERS v METROPOLITAN LIFE INSURANCE COMPANY
    Docket No. 78-1124.
    Submitted July 6, 1978, at Detroit.
    Decided September 21, 1978.
    Leave to appeal denied, 406 Mich —.
    Plaintiff Raymond Chalmers was employed by defendant General Motors Corporation as an airplane pilot. Plaintiff suffered a heart attack and his pilot’s license was permanently suspended as a result. Plaintiff thereafter claimed benefits under an extended disability benefit section of a group insurance policy issued by defendant Metropolitan Life Insurance Company for the reason that he was totally disabled to perform his job as pilot. Metropolitan Life denied the benefits on the basis that, although plaintiff is no longer able to get a pilot’s license, there are many jobs that he is physically qualified to do. Plaintiff then brought suit for the benefits. The Wayne Circuit Court, Horace W. Gilmore, J., granted a partial summary judgment to the plaintiff against defendant Metropolitan Life only for benefits payable as of that time based on a finding that the plaintiff was totally disabled within the meaning of the language of the insurance policy. Defendant Metropolitan Life Insurance Company appeals. Held:

    The record indicates that the plaintiff is totally disabled from pursuing his former occupation of airplane pilot and that all significant education, training and experience accumulated by plaintiff was geared to his preparation for the specialized occupation of airplane pilot. This was the particular occupation for which the plaintiff is reasonably qualified. Therefore, the trial court did not err in awarding the plaintiff a partial summary judgment where such holding was based on the court’s findings that the plaintiff was totally disabled so as to be unable to engage in any occupation or employment for which he was reasonably qualified by education, training or experience, and thus the plaintiff was totally disabled under the terms of the insurance policy’s disability provision.
    Affirmed.
    References for Points in Headnotes
    [1] 44 Am Jur 2d, Insurance §§ 1490, 1606 et seq., 1879 et seq.

    [2, 4, 5] 44 Am Jur 2d, Insurance §§ 1490, 1606 et seq.

    [3, 4, 6] 43 Am Jur 2d, Insurance §§ 257-277.

      1. Appeal and Error — Insurance—Summary Judgment — Total Disability — Reasonably Qualified for Employment.
    A trial court did not commit clear error, in an action to recover benefits under the extended benefit section of a group insurance policy, in deciding that the plaintiff was entitled to partial summary judgment for benefits payable as of that time where such decision was based on the finding that the plaintiff was totally disabled from pursuing his former occupation of airplane pilot within the meaning of the policy language defining total disability as being unable to engage in any gainful occupation or employment for which one is reasonably qualified by education, training or experience, and where the trial court found that all significant education, training and experience accumulated by plaintiff was geared to his preparation for the specialized occupation of airplane pilot and that, therefore, this was the particular occupation for which the plaintiff was reasonably qualified.
    2. Insurance — Construction of Policy — Total Disability — Elements — Quality—Quantity.
    Two elements are involved in defining "total disability” as the term is used in disability provisions of an insurance contract: first, the element of quality involves the question of whether the insured must be unable to work in his particular occupation, or whether he must be unable to work in other occupations as well, and second, the element of quantity which is concerned with the amount of work an insured can be capable of performing and still be considered totally disabled.
    3. Insurance — Construction of Policy — Disability Provisions— Ambiguity — General Rule — Interpretation—Ordinary Business Man.
    The general rule regarding the interpretation of disability provisions in insurance policies provides that the disability provisions are to be given a reasonable, rather than a literal, construction, and, if ambiguous, are to be construed in favor of the insured; however, the court cannot make a new contract for the parties, and if there is no ambiguity, neither party will be favored; the guide in construing disability provisions is the interpretation which would be given them by the ordinary business man, or by a reasonable person in the position of the insured.
    4. Insurance — Construction of Policy — Ambiguity—Reasonably Qualified — General Rule.
    Sufficient ambiguity exists as to the meaning of the term "reasonably qualified” which is contained in an extended disability benefit provision of an insurance contract to bring that provision within the general rule, which provides that such provision be construed in favor of the insured where the policy provides that a person is totally disabled if he is unable to engage in any gainful occupation or employment for which he is reasonably qualified by education, training or experience, and where the words any gainful occupation or employment are modified by the clause, and limited to those occupations, for which he is reasonably qualified by education, training or experience.
    5. Insurance — Construction op Policy — Total Disability Provisions — Three Views.
    The three views relating to the interpretation of total disability provisions in insurance policies are: (1) the extreme view in favor of the insured that total disability exists whenever the insured is unable to perform the duties of his particular occupation, (2) the extreme view in favor of the insurer that total disability exists only when there is incapacity to pursue any occupation whatever, and (3) the intermediate view which regards total disability as a relative term, which rejects both of the two extreme views and which employs differing language to explain the degree of incapacity required to constitute total disability; Michigan cases have followed the intermediate view.
    6. Insurance — Ambiguities in Policy — Supreme Court — Liberal Construction — Reasonable Expectations of Insured — Benefits.
    The Michigan Supreme Court has indicated a strong commitment to a liberal construction of insurance policies containing ambiguities which does not permit the defeat of an insured’s reasonable expectation of payment of benefits.

      Levin, Levin, Garvett & Dill (by David A. Goldman), for plaintiff.

      Dickinson, Wright, McKean, Cudlip & Moon (by Michael G. Vartanian), for defendant.
    Before: N.J. Kaufman, P.J., and Beasley and P.R. Mahinske, JJ.

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

   Beasley, J.

After long service as an airplane pilot for General Motors Corporation, plaintiff suffered a severe heart attack on January 17, 1971. Although he recovered, his pilot’s license was permanently suspended as a result of the heart attack. Plaintiff claimed benefits under an extended disability benefit section of a group insurance policy issued by defendant Metropolitan Life Insurance Company for the reason that he is totally disabled to perform his job as an airplane pilot. Defendant denied extended disability benefits on the basis that, although plaintiff is no longer able to get a pilot’s license, there are many jobs that he is physically qualified to do. After plaintiff filed suit, both parties moved for summary judgment. The trial court granted plaintiff a partial summary judgment for benefits payable as of that time based on a finding that plaintiff was totally disabled within the meaning of the language of the insurance policy. Defendant appeals as of right.

The sole issue for our consideration is whether the trial court erred in deciding that plaintiff was entitled to partial summary judgment on the basis that he was totally disabled under the terms of the insurance policy even though he was, and is, physically qualified to do some jobs.

Essentially, the question here involves interpretation of the disability provisions of the group life insurance policy issued by defendant. The key provision in the policy reads:

"If, while insured * * * the Employe is both under age 65 and totally disabled so as to be unable to engage in any gainful occupation or employment for which he is reasonably qualiñed by education, training or experience, the amount of Extended Disability Benefit Insurance (Monthly Benefits) then in force on account of the Employe shall be paid to the Employe each month during the period the Employe is so disabled, as set forth herein.” (Emphasis added.)

Generally, two aspects or elements are involved in defining "total disability”. First, there is the element of quality, which involves the question of whether the insured must be unable to work in his particular occupation, or whether he must be unable to work in other occupations as well. Then, there is the element of quantity, which is concerned with the amount of work an insured can be capable of performing and still be considered "totally disabled”, that is, whether the insured need be absolutely helpless, or whether he may be able to perform minor acts only, or whether he may be able to perform substantial acts.

It should be noted that since plaintiff in the instant case is one hundred percent disabled from performing within his former occupation of airplane pilot, the question of what quantity of work he is capable of performing within his given occupation is not at issue. The question is: Does the fact that plaintiff could possibly pursue some occupations other than that of licensed airplane pilot precluded a conclusion that he is totally disabled as the term is used in the insurance policy?

The rule for interpretation of disability provisions in insurance policies has been stated:

"As a general rule the disability provisions are to be given a reasonable, rather than a literal, construction, and, if ambiguous, are to be construed in favor of insured; but the court cannot make a new contract for the parties, and, if there is no ambiguity, neither party will be favored. The guide in construing disability provisions is the interpretation which would be given them by the ordinary business man, or by a reasonable person in the position of insured.” 45 CJS 1103-1104. (Footnotes omitted.)

There is an ambiguity in the provision in dispute in the instant case sufficient to bring the provision within the general rule quoted above. The policy provides that a person is totally disabled if he is unable to engage in any gainful occupation or employment for which he is reasonably qualiñed by education, training or experience. Careful reading indicates the policy language covers "any gainful occupation or employment” but that the words "any gainful occupation or employment” are modified by the clause, and limited to those, "for which he is reasonably qualified by education, training or experience”. Thus, the ambiguity arises from and the question then is as to the meaning, under the policy, of "reasonably” qualified.

In general, there are three views relating to the interpretation of "total disability” provisions in insurance policies. They are:

1) the extreme view in favor of the insured that total disability exists whenever the insured is unable to perform the duties of his particular occupation;

2) the extreme view in favor of the insurer that total disability exists only when there is incapacity to pursue any occupation whatever, and

3) the intermediate view, which regards total disability as a relative term, which rejects both of the two extreme views and which employs differing language to explain the degree of incapacity required to constitute total disability. We interpret the Michigan cases to follow the so-called intermediate view.

In Ebert v Prudential Ins Co of America, the Michigan Supreme Court utilized the above terminology and affirmed a judgment in favor of plaintiff who was an undertaker. The evidence indicated that plaintiff injured his back in an automobile accident suffering what was described as hypertrophic arthritis. The Court said that while he could do some light work he could not perform the embalming and lifting required of an undertaker. The Court concluded that he was permanently and totally disabled so as to be entitled to benefits under a provision contained in his life insurance policies. The Ebert Court made it clear that where there is ambiguity, insurance policies are to be liberally construed in favor of the insured. Technical construction to defeat claims is not favored.

We recognize that the language of the insurance policies involved in the Michigan cases tends to vary, but within those varying provisions, the Michigan Court has indicated a strong commitment to a liberal construction of such insurance policies that does not permit defeat of a reasonable expectation of payment of benefits. See, Crowell v Federal Life & Casualty Co.

Applying that view to the facts of the instant case, we note that the record reveals beyond dispute that plaintiff is totally disabled from pursuing his former occupation of airplane pilot. There is considerable evidence of record to indicate that all significant education, training and experience accumulated by plaintiff was geared to his preparation for the specialized occupation of airplane pilot. It is this particular occupation for which plaintiff is reasonably qualified.

Defendant argues that prior to his heart attack plaintiff had experience in sales and aviation-related jobs such as maintenance, scheduling and flight operations. Defendant says this experience compels the conclusion that plaintiff is reasonably qualified for such jobs and that, therefore, since plaintiff is now physically capable of doing that kind of work, he is not totally disabled within the meaning of the term as delineated in the insurance policy. In support of this argument, defendant cites Przbylinski v Standard Pressed Steel Co.

In Przbylinski, this Court affirmed a directed verdict for defendant where plaintiff failed to offer evidence that "he suffered a disability which prevented him from engaging in any occupation for which he was reasonably fitted” and also failed to offer evidence that he was being treated by a physician for the disability as required under that insurance policy. In fact, the evidence showed that plaintiff, a supervisor, believed he was still physically able to do the work and did similar work for another employer for 4-1/2 months subsequent to his alleged disablement. We conclude Przbylinski is, on its facts, readily distinguishable from this case and is not controlling precedent here.

In the within case, the trial judge said:

"Now it would seem to me that to say that this man now is reasonably qualified by education, training, or experience to do anything but fly is stretching it a little bit far. Clearly his whole adult life for all practical purposes has been devoted to flying, and to say now that at age 51 he is reasonably qualified by education, training, or experience to undertake something else, real estate or some other type of employment, seems to me stretching the language a little bit.”

We do not believe his finding was clearly erroneous.

To hold as defendant contends would be to interpret the policy as extending very limited coverage. We believe the coverage afforded under this group policy looked to the work performed by the employee for this employer. We also note that the work experience relied upon by defendant as a basis to attempt to defeat liability occurred many years ago. The trial judge’s ruling is consistent with the Michigan cases.

We hold, therefore, that under the terms of the insurance policy in question, plaintiff is unable to engage in any occupation or employment for which he is reasonably qualified by education, training or experience. Consistent with this conclusion, we affirm the award of partial summary judgment in favor of plaintiff by the trial court.

Plaintiff entitled his motion to be one for partial summary judgment, but did not specify the section of GCR 1963, 117 under which it was brought. Since the motion expressly referred to depositions, answers to interrogatories and the record, it would appear to be under GCR 1963, 117.2(3); although, in another sense, it resembles a GCR 1963, 117.2(2) motion. It is better practice to designate the specific court rule under which a motion is brought. However, since the bare facts are not in dispute, and in view of our conclusion, we will not remand for clarification of which section of GCR 1963, 117, upon which plaintiff intended to base his motion. Defendant’s motion was for summary judgment under GCR 1963, 117.2(3).

Our ruling would appear to be supportable under either GCR 1963, 117.2(2) or (3).

Affirmed.

       The insurance policy here in question provided so-called Sickness and Accident Benefits for a maximum period of 12 months, which defendant paid plaintiff. The subject policy also provided for payment of extended disability benefits commencing on termination of the sickness and accident payments; it is payment of the extended disability payment that is here in dispute. For one year after his heart attack, plaintiff received his full salary from his employer, General Motors Corporation, and he receives retirement benefits. Also, for a period of about four years, plaintiff received substantial benefits from defendant under a so-called loss of pilot’s license insurance policy.
      Plaintiff’s claims against defendant General Motors Corporation have not yet been litigated. The summary judgment runs only against defendant Metropolitan Life Insurance Company; thus, only defendant Metropolitan Life Insurance Company appeals. In this opinion, defendant means Metropolitan Life Insurance Company.

       21 ALR3d 1155, 1158-1159.

        Id. at 1161; See also, 21 ALR3d 1383, 1393-1394.

        Crowell v Federal Life & Casualty Co, 397 Mich 614; 247 NW2d 503 (1976), Ebert v Prudential Ins Co of America, 338 Mich 320; 61 NW2d 164 (1953), Besh v Mutual Benefit Health & Accident Ass’n, 304 Mich 343; 8 NW2d 91 (1943), Wheeler v Equitable Life Assurance Society of the United States, 294 Mich 520; 293 NW 735 (1940), Hallock v Income Guaranty Co, 270 Mich 448; 259 NW 133 (1935), Hohn v Inter-State Casualty Co, 115 Mich 79; 72 NW 1105 (1897).

       338 Mich 320, 330; 61 NW2d 164 (1953).

       See Michigan cases cited in footnote 4.

       397 Mich 614; 247 NW2d 503 (1976).

       62 Mich App 461; 233 NW2d 614 (1975).


author: Per Curiam.

text:
    MICHIGAN NATIONAL BANK v WINDSOR CHARTER TOWNSHIP (AFTER REMAND)
    Docket No. 27348.
    Submitted March 10, 1977, at Lansing.
    Decided September 21, 1978.
    Michigan National Bank and Grey Mobile Home Sales, Inc., commenced an action against Windsor Charter Township seeking a judgment that a zoning ordinance was arbitrary, unreasonable and unenforceable. Judgment for plaintiffs in Eaton Circuit Court, Willard L. Mikesell, J. The defendant appealed. The Court of Appeals remanded to the trial court, 76 Mich App 387 (1977), for findings of fact under the Supreme Court’s decision in Kirk v Tyrone Twp, 398 Mich 429 (1976).
    The original trial court was unable to participate in the remand, and so on September 29, 1977, the Court of Appeals issued an order directing the successor to the original trial court to render a decision under Kirk, with the Court of Appeals retaining jurisdiction. Eaton Circuit Court, Hudson E. Deming, J., has complied with that order and has determined that the ordinance is not arbitrary, unreasonable and unenforceable. The Court of Appeals now reviews that determination. Held:

    1. The ordinance is not unconstitutional on its face and contains sufficiently definite standards.
    2. The ordinance is not confiscatory in its application to the property in question.
    3. The terms of the ordinance do not totally exclude the proposed use, as a special use permit was granted for an identical purpose on an adjacent tract.
    Affirmed.
    1. Zoning — Reasonableness—Governmental Interest — Requested Change of Classification.
    The correct test for judicial review of requested zoning changes is that the plaintiff requesting rezoning must show: (1) that there is no reasonable governmental interest being advanced by the present zoning classification itself, or (2) that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Zoning and Planning §§ 15, 334 et seq., 340 et seq.

      [2] 82 Am Jur 2d, Zoning and Planning § 25 et seq.

    [3] 82 Am Jur 2d, Zoning and Planning § 27.
    [4] 82 Am Jur 2d, Zoning and Planning § 36.
    [5] 5 Am Jur 2d, Appeal and Error §§ 822, 839 et seq.

      2. Zoning — Ordinance—Presumption op Validity.
    A zoning ordinance comes to an appellate court clothed with every presumption of validity.
    3. Zoning — Ordinances—Burden of Proof — Arbitrary and Unreasonable Restriction.
    It is the burden of a party attacking a zoning ordinance to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property; it must be shown that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for legitimate difference of opinion concerning its reasonableness.
    4. Zoning — Ordinances—Restrictions—Reasonable Use.
    To sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.
    5. Appeal and Error — Equity—Findings of Trial Judge.
    Appellate courts should give considerable weight to the findings of the trial judge in equity cases.

      Church, Wyble, Kritselis, Tesseris, Anderson & Robinson, for plaintiffs.

      Warner, Hart, Morgan, Fuzak & Williams, for defendant.
    Before: D.F. Walsh, P.J., and Allen and N.J. Kaufman, JJ.
   After Remand

Per Curiam.

This case has been before this

Court on a prior occasion. In Michigan National Bank v Windsor Charter Twp, 76 Mich App 387; 256 NW2d 791 (1977), this Court remanded this case to the trial court for findings of fact under the Supreme Court’s decision in Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976).

The original trial court was unable to participate in the remand, and so on September 29, 1977, this Court issued an order directing the successor to the trial court to render a decision under Kirk, supra. The trial court has complied with that order and we review the successor court’s opinion.

Quoting from Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), the Supreme Court in Kirk, supra, detailed the applicable principles and tests:

"The important principles require that for an ordinance to be successfully challenged plaintiffs prove:
" '[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself * * * or
" '[Secondly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.’ 391 Mich 139, 158.
"The four rules for applying these principles were also outlined in Kropf. They are:
"1. ' "[T]he ordinance comes to us clothed with every presumption of validity.” ’ 391 Mich 139, 162, quoting from Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
"2. ' "[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property * * * . It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.” 391 Mich 139, 162, quoting Brae Burn, Inc.
"3. 'Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted. 391 Mich 139, 162-163.
"4. ' "This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.” ’ 391 Mich 139, 163, quoting Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).” 398 Mich at 439-440.

As to the first three rules applicable to a trial court, the successor court rendered conclusions of law based on the findings of fact enumerated in its opinion.

The successor court found that "[t]he presumption of validity of the ordinance was not rebutted”. We agree. The ordinance is not unconstitutional on its face and contains sufficiently definite standards. Osius v St Clair Shores, 344 Mich 693; 75 NW2d 25 (1956).

The successor trial court further elaborated:

"The terms of the ordinance are not an arbitrary and unreasonable restriction upon the plaintiff’s use of their property. It was not an arbitrary fiat on the part of defendant’s Township Board to deny the application of plaintiffs, and there is room for a legitimate difference of opinion regarding its reasonableness. Rule 2 of Kirk, supra, p. 439.
"The Bank and Grey failed to show that if the ordinance is enforced the consequent restrictions on the Bank’s property preclude its use for any purposes to which it is reasonably adapted. To the contrary, they concede it is suitable for its zoned purpose. Rule 3 of Kirk, supra, p. 439.”

Again, we agree with the conclusions of the successor trial court. See also Long v Highland Park, 329 Mich 146; 45 NW2d 10 (1950). The testimony of a senior vice-president of plaintiff bank, to the effect that it didn’t try to sell the land as agricultural merely because it felt that the land was "too valuable” for that purpose, puts to rest any contention that the ordinance was confiscatory in application. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969), Cohen v Canton Twp, 38 Mich App 680; 197 NW2d 101 (1972). Nor can there be any argument that the terms of the ordinance totally exclude the proposed use from the township, as a special use permit was granted for an identical purpose on an adjacent tract.

Cognizant of a reviewing court’s duty under the fourth Kropf rule, and thus giving "considerable weight to the findings of the trial judge in equity cases”, we affirm those findings.

Affirmed.

       This case arose prior to the Supreme Court’s decision in Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976), at a time when the Supreme Court’s decision in Sabo v Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975), was controlling.

       We would note that it is not arbitrary to allow a proposed use in one section of a township, and to deny the use in another section of the township — even if the parcels are close together. The consequences of adopting the opposing viewpoint might result in a township filled with trailer parks.


text:
    PEOPLE v DENNY
    Docket No. 30812.
    Submitted April 12, 1978, at Lansing.
    Decided September 21, 1978.
    John Denny was convicted of first-degree criminal sexual conduct and armed robbery in the Washtenaw Circuit Court, Patrick J. Conlin, J. Defendant appeals, claiming that the trial court improperly exercised its discretion in allowing the prosecutor to use a three-month-old guilty plea conviction for first-degree criminal sexual conduct to impeach the defendant. Held:

    The proper rule is that, while similar crimes evidence is admissible for impeachment, such evidence should be admitted with extreme caution. The factors to be considered in admitting such evidence are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions. The trial court erred in admitting the prior conviction because it was similar to the crime charged. Similarity between the crime charged and the prior conviction weighs against admission of the prior conviction because of the possibility that the jury might conclude that if the defendant had done it before, he did it this time. The application of this erroneous standard cannot be deemed harmless because it may have influenced defendant’s decision not to testify.
    Reversed and remanded.
    1. Criminal Law — Evidence—Admissibility of Evidence — Impeachment — Prior Convictions — Abuse of Discretion.
    The factors a trial court must weigh in deciding whether or not to allow impeachment of a defendant in a criminal case by evidence of prior convictions are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions.

      References for Points in Headnotes
    [1, 2, 4] 29 Am Jur 2d, Evidence §§ 320, 327.
    [3] 5 Am Jur 2d, Appeal and Error § 880.
    [4] 29 Am Jur 2d, Evidence § 321.
    Admissibility, in prosecution for sexual offense, of evidence of other similar offenses. 77 ALR2d 841.
    [5] 63 Am Jur 2d, Prosecuting Attorneys §§ 25, 27.

      2. Criminal Law — Evidence—Admissibility—Similar Crimes — Impeachment.
    Similar crimes evidence is admissible in a criminal trial for impeachment purposes, however, such evidence should be admitted with extreme caution.
    3. Trial — Court’s Discretion — Prejudice—Errors.
    An erroneous exercise of discretion by a trial judge is as prejudicial to a defendant as not exercising discretion.
    4. Appeal and Error — Criminal Law — Court’s Discretion — Evidence — Prior Convictions — Criminal Sexual Conduct — Impeachment — Harmless Error — Testimony by Defendant— Jury.
    A trial court erred in improperly exercising its discretion in admitting evidence of a defendant’s prior conviction of first-degree criminal sexual conduct to impeach the defendant in a trial for first-degree criminal sexual conduct and armed robbery where the trial court indicated that the conviction could be used for impeachment because it was identical to the crime charged; similarity between the crime charged and the prior conviction weighs against admission of the prior conviction because of the possibility that the jury might conclude that if the defendant had done it before, he did it this time; application of this erroneous standard cannot be deemed harmless where it may have influenced the defendant’s decision not to testify.
    5. District and Prosecuting Attorneys — Officers of the Court— Duties — Reversible Error.
    A prosecutor, as an officer of the court, has a duty to see that apparent reversible error is not committed, even if the error is favorable to his case.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and John J. Hensel, Senior Assistant Prosecuting Attorney, Chief Appellate Division, for the people.

      Norman Fell, for defendant.
    Before: Danhof, C.J., and Bronson and Cynar, JJ.
   Per Curiam.

Defendant was found guilty by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(d); MSA 28.788(2)(l)(d), and armed robbery, MCL 750.529; MSA 28.797. He appeals of right.

One issue raised by defendant mandates reversal.

Defense counsel moved at trial to prevent the prosecutor from using a three-month-old guilty plea conviction for first-degree criminal sexual conduct to impeach defendant. The trial court correctly recognized its discretion in this area, see People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). See, also, MRE 609(a). However, the discretion was improperly exercised, i.e., the trial court indicated that the conviction could be used to impeach because it was identical to the crime charged.

Some guidelines for exercising discretion were detailed in People v Jackson, supra, at 333:

"Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions.” (Footnote omitted.)

See Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967). This paraphrasing has apparently caused some confusion about the admissibility of similar crimes for impeachment purposes. See People v Cash, 80 Mich App 623, 627, n 2; 264 NW2d 78 (1978). The proper rule is that, while similar crimes evidence is admissible for impeachment, such evidence should be admitted with "extreme caution”. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), People v Cash, supra.

The trial judge’s error in the case at bar was identical to the error in Cash: discretion was exercised, but the trial court erroneously thought that similar crimes were generally admissible while dissimilar crimes were not. An erroneous exercise of discretion is as prejudicial to a defendant as not exercising discretion. We hold that the trial court erred in ruling on the admissibility of defendant’s prior conviction.

We further hold that this error cannot be deemed harmless.

First, it is immaterial that defendant chose not to testify after the court ruled that the conviction was admissible to impeach, because the ruling itself may have influenced defendant’s decision not tb testify. People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975).

Second, while a similar error was held harmless in People v Cash, supra, in that case the defendant denied being convicted of the similar crime and no collateral proof was introduced. Thus, the Court noted, there was no possibility of the jury concluding that "if he did it before, he probably did so this time”. See People v Cash, supra, at 628. In the case at bar, the court’s ruling raised that precise problem. Thus, the error was not harmless.

We also note that the prosecutor must share responsibility for this error. The prosecutor, as an officer of the court, has the duty to see that apparent reversible error is not committed, even if the error is favorable to his case. As stated in ABA Standards Relating to the Prosecution Function and the Defense Function, 1.1(c) (Approved Draft, 1971): "The duty of the prosecutor is to seek justice, not merely to convict”. As an officer of the court and a law enforcement official, the prosecutor must act not only as the sword of justice but also as the shield of justice. If the prosecutor recognizes that error is being committed, it is his duty to seek its immediate correction. A failure to exercise this duty results in costly and time-consuming retrials which could have been avoided.

Reversed and remanded for a new trial.

       The court stated:

        "The Court: The motion is denied. He is charged at this time with criminal sexual conduct, and any charge that is similar, the prosecution may go into it for the question of credibility. The jury is entitled to hear this because they have to determine credibility. Motion denied.

        "The Court: But anyway, the jury is entitled to know this. The law is very clear. If he takes the stand, the prosecution can go into his past record — not regarding any dissimilar crimes, which I never allow —but of similar crimes of a similar nature, the jury can hear them. The motion is denied. Next?”

       These guidelines were derived from Judge (now Chief Justice) Burger’s opinion in Gordon v United States, infra, at 347; 383 F2d at 940, where he stated:
      "A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time’. As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” (Footnote omitted.)

        See Luck v United States, 121 US App DC 151; 348 F2d 763 (1965).

       Upon retrial, if this issue arises again, the trial court should exercise its discretion in accordance with People v Jackson, supra. See People v Crawford, supra.


text:
    DAVIS v FARMERS INSURANCE GROUP
    Docket No. 77-1467.
    Submitted June 22, 1978, at Detroit.
    Decided September 21, 1978.
    Bobby J. Davis commenced an action against Farmers Insurance Group of Companies to recover benefits under a policy of insurance issued to him by the defendant for injuries sustained in a motorcycle accident. The defendant brought a motion for accelerated judgment on grounds that the claim was barred by the applicable statute of limitations because the plaintiff had not filed the complaint within one year of the accident, and had neither received payment from the insurer of personal protection insurance benefits for the injury, nor given notice to the insurer of the injury within one year after the accident. The defendant’s motion was denied, Wayne Circuit Court, James N. Canham, J. The defendant appeals by leave granted. Held:

    The plaintiffs claim was subject to a one year statute of limitations and, as he had not commenced the action, had not given notice to the insurer and had not received payment of benefits from the insurer for the injury within one year of the accident, the claim was barred. The defendant was entitled to accelerated judgment.
    Reversed and complaint dismissed.
    1. Notice — Limitation op Actions — Statutes op Limitation.
    Notice provisions have different objectives than statutes of limitation; notice provisions are designed, inter alia, to provide time to investigate and to appropriate funds for settlement purposes; statutes of limitation are intended to prevent stale claims and to put an end to fear of litigation.
    2. Automobiles — Insurance—No-Fault Insurance — Personal Protection Benefits — One-Year Period — Statute of Limitation.
    A portion of the no-fault automobile insurance act which provides that certain actions for recovery of personal protection benefits for accidental bodily injury may not be commenced later than one year after the date of the accident causing the injury, unless written notice of the injury has been given to the insurer within one year after the accident, or unless the insurer has previously made a payment of personal protection insurance benefits for the injury, is a one-year statute of limitations with a provision enabling claimants to extend the period for up to one additional year by giving notice; therefore, where a plaintiff neither filed a complaint, nor gave notice, nor received payments within the one-year period, the plaintiff was barred from later presenting his claim and a defendant’s motion for accelerated judgment should have been granted (MCL 500.3145[1]); MSA 24.13145[1]).

      References for Points in Headnotes
    [1] 51 Am Jur 2d, Limitation of Actions § 17.
    58 Am Jur 2d, Notice §§ 8-11.
    [2] 7 Am Jur 2d, Automobile Insurance § 223.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for plaintiff.

      Silber, Katz, Bocknek & Schreier, P.C., for defendant.
    Before: D.C. Riley, P.J., and M.F. Cavanagh and B.M. Hensick, JJ.

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

   Per Curiam.

Plaintiff brought this action to recover benefits under a policy of insurance issued to him by defendant, for injuries sustained in a motorcycle accident. Defendant brought a motion for accelerated judgment under GCR 1963, 116.1(5), on grounds that the claim was barred by the applicable statute of limitations. The trial court denied the motion, and defendant brings this appeal by leave of the Court.

The decision of this case depends upon an interpretation of a section of the no-fault insurance statute, MCL 500.3145(1); MSA 24.13145(1), which provides:

"(1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. The notice of injury required by this subsection may be given to the insurer or any of its authorized agents by a person claiming to be entitled to benefits therefor, or by someone in his behalf. The notice shall give the name and address of the claimant and indicate in ordinary language the name of the person injured and the time, place and nature of his injury.”

Plaintiff contends that the quoted section is not a limitation of actions provision, but rather a notice provision and therefore constitutes a bar to this action only if defendant establishes that it was prejudiced by the lack of notice, citing Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973).

We disagree. Notice provisions have different objectives than statutes of limitation. Notice provisions are designed, inter alia, to provide time to investigate and to appropriate funds for settlement purposes. Statutes of limitation are intended to prevent stale claims and to put an end to fear of litigation. Dillon v Tamminga #1, 64 Mich App 301; 236 NW2d 716 (1975).

In Dolson v Secretary of State, 83 Mich App 596; 269 NW2d 239 (1978), we dealt with the time limitation for recovery of personal protection insurance benefits claimed through an assigned claims plan, embodied in MCL 500.3174; MSA 24.13174. The time limitation contained in that section is determined by applying MCL 500.3145(1); MSA 24.13145(1), which provision is involved in the instant case. We concluded in Dolson that the specific objective of the time limitation is to insure that claims be settled while the evidence remains fresh. This objective is characteristic of a statute of limitation.

In the case at bar, the language of the statute was intended as a limitation on actions for personal benefits arising under the no-fault act, with a mechanism for extending the one-year period upon filing of notice within the year. There is no requirement that plaintiff file notice in order to be able to take advantage of the full statutory period. That he is entitled to in any case. Notice simply gives him the benefit of an additional year’s grace.

The statute construed in Carver, supra, by contrast, contained a three-year period of limitations for filing lawsuits, with an additional provision that failure to file notice of intent to claim within six months of the accrual of the cause of action also barred the claim, MCL 257.1118; MSA 9.2818. Unlike the statute involved in Carver, the provision involved herein does not unduly restrict access to the courts. Its effect is to encourage those with a claim against their insurance company to bring the matter to court while it is fresh. It differs from statutory notice provisions which trap unwary litigants who have claims which are brought within the time limited, but without proper notice.

Thus, we conclude that MCL 500.3145(1); MSA 24.13145(1) is a one-year statute of limitations, with a provision enabling claimants to extend the period for up to one additional year by giving notice. Plaintiff having neither filed a complaint nor given notice within the one-year period, is barred from now presenting his claim. The motion for accelerated judgment should have been granted.

Accordingly, we reverse the trial court and dismiss plaintiff’s complaint.

Costs to appellant.


author: Per Curiam:. J. H. Gillis, J.

text:
    PEOPLE v REESE
    Docket No. 77-1744.
    Submitted June 22, 1978, at Detroit.
    Decided September 21, 1978.
    Arthur Reese, also known as Michael Burton, was convicted of armed robbery in the Recorder’s Court of Detroit, John Patrick O’Brien, J. Defendant appeals, claiming that the admission of rebuttal testimony revealing that he was recently arrested for an unrelated crime similar to that which was charged was error and that a new trial is required. Held:

    The trial court erred in admitting such rebuttal evidence since it did not refute any part of the defendant’s alibi defense, but rather, was used to assert new evidence of guilt and improperly injected evidence of a recent bad act which was nearly identical to that for which the defendant was being tried. The prosecutor’s deliberate injection of improper evidence of the commission of a separate crime by defendant was not harmless error, and was so offensive to the maintenance of a sound judicial system that it requires reversal.
    Reversed and remanded.
    J. H. Gillis, J., concurred but found nothing in the record to indicate that the prosecutor deliberately injected the improper evidence knowing it to be prejudicial and without probative value. He believes that reversal is not mandated in all instances where improper prior bad act testimony is elicited by a prosecutor; each case should be analyzed in order to determine the effect that the complained of testimony had on the verdict.
    Opinion of the Court
    1. Evidence — Rebuttal Evidence — Definition.
    Rebuttal evidence is that which is introduced by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 250.
    [2, 3, 6, 7] 5 Am Jur 2d, Appeal and Error § 798.
    29 Am Jur 2d, Evidence §§ 269, 320, 321.
    [3] 29 Am Jur 2d, Evidence §§ 322, 326.
    [4] 29 Am Jur 2d, Evidence § 253.
    [5, 7] 5 Am Jur 2d, Appeal and Error § 783 et seq.

    [6] 63 Am Jur 2d, Prosecuting Attorneys § 27.

      2. Criminal Law — Evidence—Rebuttal Evidence — Unrelated Crimes — Alibi Defenses — New Evidence — Harmless Error.
    The admission of rebuttal testimony in a criminal trial revealing that the defendant was recently arrested for an unrelated crime similar to the crime that the defendant is charged with in the trial was not proper rebuttal testimony where such testimony did not refute any part of the defendant’s alibi defense, but rather, was used to assert new evidence of guilt and improperly injected evidence of a recent bad act which was nearly identical to that for which the defendant was being tried; the error was not harmless since it was so offensive to the maintenance of a sound judicial system that it requires reversal.
    3. Criminal Law — Evidence—Other Bad Acts — General Rule — Exceptions to Rule — Matters Disputed by Defendant — Prosecutors — Case-in-Chief.
    The general rule regarding the use of evidence of a defendant’s other bad acts is that evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed; an exception to this rule provides that a prosecutor may introduce in its case-in-chief evidence probative of a design, scheme or plan, or of the identity of the perpetrator of the charged offense where the purpose of such evidence is to prove that the defendant, not some other person, committed the act for which he stands accused.
    4. Criminal Law — Evidence—Other Bad Acts — Prejudicial Effects.
    After the requirements for the admission of evidence of other bad acts, other than the charged offense, have been met, a trial court still must weigh the probative value of such evidence against its likely prejudicial effect and exclude such evidence if prejudicial effect predominates.
    5. Appeal and Error — Harmless Error — Standard.
    The standard for harmless error involves a dual inquiry: was the error so offensive to the maintenance of a sound judicial system as to require reversal, and, if not, was the error harmless beyond a reasonable doubt; the purpose of the first criterion is to deter prosecutorial and police misconduct.
    6. Criminal Law — Evidence—Separate Crimes — Admissibility—Appeal and Error.
    A prosecutor’s deliberate injection of improper evidence of the commission of a separate crime by a defendant and the trial court’s acquiescence in it are such an affront to the integrity of the trial process that the Michigan Supreme Court does not countenance it.
    Concurrence by J. H. Gillis, J.
    7. Appeal and Error — Evidence—Prior Bad Acts — Prosecutors— Testimony — Effect on Jury.

      Reversal is not mandated in all instances where improper prior bad act testimony is elicited by a prosecutor; each case should be analyzed in order to determine the effect that the complained-of testimony had on the verdict.

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

      Hoffa, Chodak & Robiner, for defendant.
    Before: R.M. Maher, P.J., and J.H. Gillis and McGregor, JJ.

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

   Per Curiam:.

Defendant was charged with robbery armed in violation of MCL 750.529; MSA 28.797, and possession of a firearm while committing a felony in violation of MCL 750.227(b); MSA 28.424(2). A jury trial resulted in a finding of guilty as to the armed robbery only. Defendant was sentenced to 11 to 25 years in prison.

An appeal as of right presents us with three issues, only one of which requires discussion.

The prosecutor’s case in chief included the testimony of the complainant, Mrs. Hall, who stated that on Sunday, February 6, 1977, at 10:50 a.m. she arrived near her church, parked her car, and was exiting the car when she was confronted by the defendant. She testified that the defendant pulled a sawed-off shotgun from his coat, pointed it at her face, and took both her car and her purse containing about $23.

After the defendant’s arrest, Sergeant Sommers, the officer in charge of the case, conducted a live lineup at which an attorney was present. Mrs. Hall, who had identified defendant at a photo showup, again identified the defendant.

Defense counsel had announced in his opening statement that the defense would be alibi. A friend of the defendant, Robin Brown, testified that she was with the defendant from 10 p.m. Saturday, February 5 until about 2 p.m. Sunday, February 6.

Defendant’s sister testified that Brown and the defendant came to her home on Sunday at about 11:30 a.m. Both Brown and the defendant’s sister testified that the Monday immediately following the Sunday they saw and spent time with the defendant he went to the Recorder’s Court building and was arrested.

The defendant did not testify.

The prosecutor called Officer Wood in rebuttal who testified that he arrested the defendant twice, once on Sunday, February 6, 1977, at 1:15 p.m., and again on Monday, February 14, 1977. Officer Wood testified that the first arrest was for an unrelated armed robbery and possession of a stolen motor vehicle. The second arrest was for the crime involved in this case.

Immediately after the officer stated that the defendant was arrested on February 6, 1977, for possession of a stolen motor vehicle and armed robbery, the defendant objected and moved for a mistrial. The court ruled that it would allow the testimony. Following argument on the objection, the trial court stated that it would "reserve a ruling”. When it became apparent that the first arrest was for an incident unrelated to the crime charged the defendant again objected.

After some discussion on the objection, the jury was excused. The prosecutor argued that he was attempting to rebut the alibi defense by showing that the defendant was arrested for the crime in this case on February 14, not February 7. The prosecutor argued that if the defendant had spent the Saturday night and Sunday morning before his arrest with Robin Brown and his sister as they had indicated, that Saturday and Sunday was the weekend after the robbery, not the weekend of the robbery.

The defendant contended that the mention of the first arrest and the testimony that it was for the possession of a stolen motor vehicle and an armed robbery of another person, required that a mistrial be granted. After the jury returned, the trial court instructed them to disregard the previous statements of the rebuttal witness. The prosecutor and the court then elicited from the witness the fact that he had arrested the defendant on both February 6 and February 14.

On appeal defendant asserts that the admission of rebuttal testimony revealing that a defendant was recently arrested for an unrelated crime similar to that which was charged requires a new trial.

Rebuttal evidence is that which is introduced "by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same”. People v Wright, 74 Mich App 297, 300; 253 NW2d 739 (1977), quoting People v Utter, 217 Mich 74, 83; 185 NW 830 (1921). In this case the rebuttal evidence disclosing that the defendant went to Recorder’s Court and was arrested on February 14, 1977, and not on February 7, 1977, fits squarely within the bounds of proper rebuttal. It removes the exculpatory effect of the defense witnesses’ testimony that they were with the defendant the Saturday and Sunday before the Monday on which he was arrested. The rebuttal evidence tends to show that the defendant’s witnesses may have spent the 12th and 13th of February with the defendant and not the 5th and 6th of February, the weekend of the crime.

That part of the rebuttal testimony which revealed that the defendant was arrested on February 6 at 1:15 p.m. is also proper because it contradicts the testimony of Robin Brown who testified that she was with the defendant until about 2 p.m. that Sunday. It also contradicts the testimony of the defendant’s sister who testified that the defendant and Robin stayed at her home until 2:30 or 3 or 4 p.m.

Having established those facts regarding the February 6 arrest which were relevant to proper rebuttal, the prosecutor asked specifically what the defendant was arrested for on February 6. The officer testified that he arrested the defendant for an unrelated armed robbery and possession of a stolen car. This testimony does not refute any part of the defendant’s alibi defense; it is not, therefore, proper rebuttal testimony. People v Wright, supra, People v Utter, supra.

This Court recently discussed the use of evidence of a defendant’s bad acts in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). The general rule stated in that case was that: "evidence of other bad acts may be introduced only when the matter which they tend to prove is disputed”. See also People v Lundberg, 364 Mich 596; 111 NW2d 809 (1961). The Court listed three exceptions to the general rule. The statement in this case could have fallen within that exception which would allow a prosecutor to show identity by showing a common modus operandi, if the statement had been offered in the prosecutor’s case in chief and if a proper foundation could have been laid. People v Wilkins, supra, People v Utter, supra. But even if the requirements of Wilkins were met, the statement would still have to be more probative than prejudicial. Wilkins, supra.

The prosecutor, on appeal, tacitly admits that the statement which implicated defendant in an unrelated armed robbery and possession of a stolen vehicle was an error. He argues that the error was harmless.

The standard for harmless error involves a dual inquiry: 1) was the error so offensive to the maintenance of a sound judicial system as to require reversal? and 2) if not, was the error harmless beyond a reasonable doubt? People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977), People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972).

The purpose of the first criterion is to deter prosecutorial and police misconduct. People v Swan, 56 Mich App 22; 223 NW2d 346 (1974). In People v White, 38 Mich App 651, 654; 197 NW2d 121 (1972), this Court held that a reference to an officer’s attempt to buy heroin from the defendant was so prejudicial as to require reversal even though the testimony also indicated that she did not sell heroin. A major consideration in the Court’s decision was that the improper testimony was elicited by a question from the prosecutor. In People v Measles, 59 Mich App 641, 642-643; 230 NW2d 10 (1975), the fact that a security officer indicated that he was referring to notes which also contained references to another incident with the defendant was not considered grounds for reversal. In that case, however, the security officer’s statement was not solicited by the prosecutor.

The prosecutor specifically elicited the information that the defendant was arrested for armed robbery and possession of a stolen motor vehicle in this case. The prosecutor had obtained an answer to the relevant question concerning the time of the arrest but proceeded to ask "What did you arrest him for?” When the witness stated possession of a stolen motor vehicle the prosecutor continued by asking "Anything else?” The witness replied "Armed robbery”. In eliciting these responses and repeating them, the prosecutor improperly used rebuttal to assert new evidence of guilt, People v Utter, supra, and improperly injected evidence of a recent bad act which was nearly identical to that for which the defendant was being tried. People v Measles, supra, People v White, supra.

Testimony of the fact that the defendant was arrested for an unrelated crime similar to the one charged clearly violated not only the general rule prohibiting evidence of unrelated bad acts but also the rules concerning the use of rebuttal which find their genesis in the 1885 case of People v Quick, 58 Mich 321, 323; 25 NW 302 (1885).

More significantly, the Michigan Supreme Court in People v Robinson, supra, held that the facts in that case, in which the prosecutor asked questions which revealed a crime unrelated to the charge, required reversal in accord with the first prong of the harmless error rule.

In Robinson the Court stated:

"Here, without regard to the result reached in this case, the prosecutor’s deliberate injection of this improper evidence and the trial court’s acquiescence in it are such affront to the integrity of the trial process that we will not countenance it”. 386 Mich at 563.

The error here was not harmless. It was "so offensive to the maintenance of a sound judicial system” that it requires reversal.

Reversed and remanded for a new trial.

J. H. Gillis, J.

(concurring). I agree that this

case should be reversed. However, I have found nothing in the record of the instant case to indicate that the prosecutor deliberately injected the improper evidence knowing it to be prejudicial and without probative value.

I would also like to note that I do not believe there should be a rule mandating reversal in all instances where improper prior bad acts testimony is elicited by a prosecutor. I think we have to take each case and analyze it in order to determine the effect that the complained of testimony had on the verdict.

I concur in the reversal of the conviction in the instant case.


author: Per Curiam. Bashara, J.

text:
    PEOPLE v CAVITT
    Docket No. 77-1775.
    Submitted April 12, 1978, at Detroit.
    Decided September 21, 1978.
    Leave to appeal applied for.
    Clyde Cavitt was charged with possession of a controlled substance. Recorder’s Court of Detroit, Samuel C. Gardner, J., issued a pretrial order suppressing narcotic evidence seized from the person of the defendant and quashing the information. The people appeal by leave granted. Held:

    Where defendant was arrested for a minor motor vehicle offense and a pat down search did not give the officer reason to believe that defendant was armed with a dangerous weapon that could be turned against him, no further search should have been conducted until defendant was taken before a magistrate or given the opportunity to post bail; any evidence seized from the defendant was properly suppressed as the product of an unreasonable search and seizure.
    Affirmed.
    Bashara, J., dissented. He would hold that police officers have the right to search the persons of defendants following a lawful arrest; the search was within the bounds of the Fourth Amendment, was legitimate police enforcement technique, and any evidence obtained was lawfully taken and admissible at trial.
    Opinion of the Court
    1. Searches and Seizures — Arrest—Weapons—Evidence—Suppression of Evidence — Magistrates—Bail.
    Evidence seized from the person of a defendant should be suppressed as the product of an unreasonable search and seizure where defendant was arrested for a minor motor vehicle offense and a pat down search did not give the officer reason to believe that defendant was armed with a weapon that could be turned against him; where there is no reason to believe that a defendant is armed with a dangerous weapon, no further search may occur until defendant is taken before a magistrate or given the opportunity to post bail.

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizures § 39.
    Lawfulness of search of motor vehicle following arrest for traffic violation. 10 ALR3d 314.
    [2, 3] 68 Am Jur 2d, Searches and Seizures §§ 37, 92, 93.

      Dissent by Bashara, J.
    2. Searches and Seizures — Arrest—Evidence—Admissibility.

      Police officers have the right to search the person of a defendant following a lawful arrest and any evidence obtained during the search is lawfully taken and is admissible at trial.

    3. Searches and Seizures — Arrest—Constitutional Law — Police Techniques.
    The right to search incident to a lawful arrest is within the bounds of the Fourth Amendment and is a legitimate police enforcement technique.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.
    Before: T. M. Burns, P.J., and N.J. Kaufman and Bashara, JJ.
   Per Curiam.

The prosecution appeals from a pretrial order suppressing evidence seized from the person of the defendant and quashing the information charging defendant with possession of a controlled substance, methamphetamine. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). We affirm.

During the evening of September 9, 1976, two uniformed Detroit police officers were patrolling the area near the Greyhound bus terminal on foot. One of the officers noticed an individual, later identified as the defendant, park an automobile in a no-standing zone near the terminal. The officer wrote out a parking ticket but did not place it on the windshield. The officers waited for defendant to return so that the ticket could be "personally served”.

When defendant returned to the car he could not produce either a driver’s license or the registration for the automobile. He was then placed under arrest for driving without an operator’s permit in his possession. MCL 257.311; MSA 9.2011. After the arrest for this traffic offense, one of the officers conducted a pat down search "for offensive weapons”. No weapon was found, but the officer did feel two pill bottles which contained the drugs upon which this prosecution is based.

The motion to suppress was decided on the basis of the preliminary exam transcript. The officer testified at that hearing that he was searching for offensive weapons when the drugs were discovered. On cross-examination regarding the objects in defendant’s pocket and sock, the officer testified:

"Q Would you describe that container?
"A A prescription container.
"Q Was it circular?
"A Circular.
"Q About how tall?
"A Maybe two, three inches.
"Q About how wide?
"A Maybe a half inch diameter.
"Q And what weapon did you think that was?
"A I had no idea.”

The trial court granted the motion to suppress because it felt the officer could not have believed that the pill container felt like a weapon. The court relied upon People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), in ruling that since there was no reason to suspect that defendant was armed, the search should not have occurred until defendant was given the opportunity to post bail under the interim bail statute.

Dixon is not strictly applicable to these facts since the discovery of narcotics in that case occurred during a search at the station house. An earlier search at the scene had revealed that defendant was not armed. The court analyzed the problem as an inventory rather than an incident to an arrest search. However, the rationale of Dixon does apply to this case.

In People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978), the panel was faced with a problem factually similar to that presented here. After an extended analysis, the majority concluded that when a person is arrested for a minor motor vehicle offense and a pat down search does not give the officer reason to believe that the person is armed with a weapon that can be turned against him, no further search may occur until the individual is taken before a magistrate or given the opportunity to post bail.

We agree with the analysis and holding of Garcia. The trial court properly suppressed the drugs taken from the defendant in this case as the product of an unreasonable search and seizure. Since there was no reason to believe that defendant was armed with an offensive weapon, the officer acted unreasonably in seizing the pill containers.

Affirmed.

Bashara, J.

(dissenting). I respectfully dissent. The majority relies on the reasoning of People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), in determining that the drugs found in the defendant’s possession were the result of an unreasonable search. The purpose of the Dixon rule, however, was to enforce the misdemeanant’s right to post bond prior to incarceration. It did not address the question of the admissibility of evidence obtained pursuant to an on the scene search where a defendant, as here, was lawfully detained.

The United States Supreme Court has recently held a search incident to a custodial arrest for a traffic offense valid in United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), and Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973). The Michigan Supreme Court has followed the mandates of Robinson and Gustafson in People v Moore, 391 Mich 426; 216 NW2d 770 (1974).

Our Court has done likewise. In People v Kremko, 52 Mich App 565, 569-570; 218 NW2d 112 (1974), lv den 392 Mich 797 (1974), we said:

"At the time the defendants were personally searched they had been placed under arrest by officer Phillips. This gave the police officers the right to search the persons of the defendants and any evidence so obtained was lawfully taken and properly admitted at defendants’ trial. This search was reasonable and within the permissible limits of the Fourth Amendment. United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973); Gustafson v Florida, 414 US 260; 94 S Ct 488, 38 L Ed 2d 456 (1973).”

The majority also relies on People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978). It should be noted that the decision in the Garcia case was not unanimous. I respectfully decline to follow the reasoning of the majority and would instead concur in the dissent written by Judge Gillis. The right to search incident to a lawful arrest is within the bounds of the Fourth Amendment and is a legitimate police enforcement technique.

I would reverse.


text:
    PEOPLE v TERRY
    Docket No. 77-2137.
    Submitted June 14, 1978, at Detroit.
    Decided September 21, 1978.
    Jeffrey W. Terry was convicted of felony murder, Macomb Circuit Court, Robert J. Chrzanowski, J. The defendant appeals, claiming (1) that the trial court should have granted his motion to quash the information on the grounds that the crime of rape, which was the underlying felony charge for the felony-murder charge, had been abolished as of April 1, 1975, (2) that an instruction to the jury which defined the crime of rape in traditional common-law terms was erroneous since the rape statute had been repealed, (3) that he had a constitutional right to make a complete statement to the police, and (4) that the prosecutor made an improper closing argument by stating "I think the defendant knew what he was doing at the time”. Held:

    1. The trial court’s denial of the motion to quash on the basis that rape still has a common-law meaning and that, therefore, the felony murder charged against the defendant involved the common-law definition of rape was not clearly erroneous.
    2. The felony-murder instruction to the jury which used a common-law definition of rape was not clearly erroneous.
    3. A defendant has no constitutional right to confess or make a statement to a police officer.
    4. The statement to the jury in the prosecutor’s closing argument did not deny the defendant a fair trial because the statement was interwoven with references to the evidence, the statement was prefaced with "I think”, there was evidence to support the prosecutor’s claim and it was in response to defense counsel’s assertion that the defendant did not know what he was doing.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 72, 79.
    [2] 40 Am Jur 2d, Homicide § 534.
    [3] 29 Am Jur 2d, Evidence § 555.
    [4] 75 Am Jur 2d, Trial § 261.
    Propriety and effect of prosecuting attorney’s argument to jury indicating his belief or knowledge as to guilt of accused. 50 ALR2d 766.

      Affirmed.
    1. Rape — Homicide—Felony Muedee — Common-Law Rape — Ceiminal Sexual Conduct Code.
    The crime of "rape” still has a common-law meaning and properly may be used as an underlying felony on which to base a felony murder conviction where a rape victim is killed by her assailant, even though the criminal sexual conduct statute has repealed the earlier rape statute effective April 1, 1975.
    2. Homicide — Felony Muedee — Rape—Ceiminal Sexual Conduct— Insteuctions to Juey — Common-Law Rape.
    An instruction to the jury, in a felony-murder case for a murder of a rape victim following the enactment of the criminal sexual conduct statute which repealed the earlier rape statute, which defined "rape” in traditional terms of common-law rape was not a clearly erroneous instruction.
    3. Constitutional Law — Confession—Right to Confess.
    A defendant does not have a constitutional right to confess or make a statement to a police officer.
    4. Ceiminal Law — Statements by Peosecutoe — Belief of Defendant’s Guilt.
    Comments on the evidence by a prosecutor and suggestions by him that the jury may make certain inferences from that evidence are not improper; however, it is improper for the prosecutor to express personal belief in the guilt of a defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and David Dalenburg, Assistant Prosecuting Attorney, for the people.

      Hopping & Boyer, P.C., for defendant on appeal.
    Before: N.J. Kaufman, P.J., and Beasley and P.R. Mahinske, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of felony murder in violation of MCL 750.316; MSA 28.548. After sentence to life imprisonment, he appeals as of right.

The felony-murder charge was based upon an allegation that defendant perpetrated or attempted to perpetrate a rape of a 14-year-old victim.

Prior to trial, defendant moved to quash the information on the grounds that the crime of rape had been abolished as of April 1, 1975. Defendant argued that the information should have charged murder in the commission or attempted commission of criminal sexual conduct in the first degree, taking the position that the criminal sexual conduct statute operated to repeal the previous rape statute and that, therefore, at the time of this alleged offense, namely, August 27, 1976, there was not any crime of rape. The trial court denied this motion, holding that rape still has a common-law meaning and that, therefore, the felony murder here charged against defendant involves the common-law definition of rape. We do not believe that in enacting the criminal sexual conduct statute the Legislature intended to repeal or modify the felony-murder statute. If the Legislature had wished to modify the felony-murder statute so as to provide that a charge should describe the offense of criminal sexual conduct rather than rape, it would have been a simple matter to so provide in the statute. For example, when the Legislature changed the legal age of majority to 18, the Legislature specifically referred to those statutes which were affected by the new legal age law. In this case, we conclude that the Legislature did not intend to change the felony-murder statute. Consequently, we do not believe that the finding of the trial court in this regard was clearly erroneous.

In instructing the jury, the trial judge defined rape in traditional terms of common-law rape as has been customary in felony murder-rape cases. Althoúgh the victim was only 14, no reference was made to statutory rape. Defendant argues that it was reversible error to instruct regarding rape when the rape statute had been repealed. Consistent with our conclusion regarding legislative intention in enacting the criminal sexual conduct statutes, we reject this argument. The Legislature did not amend the felony-murder statute. The trial judge’s instruction regarding common-law rape was not clearly erroneous.

Defendant makes the novel argument that he had a constitutional right to make a complete statement to the police, on the theory that it would have constituted evidence favorable to him regarding alleged extensive drug involvement going to his capacity to entertain the requisite intent.

A police officer testified that when defendant said he wanted to make a statement, he looked "tired” and "irritated”. The officer then told defendant he would have a prosecutor and reporter available the next morning if he wanted to make a statement. On the following morning, defendant attempted suicide in the officer’s presence, during which he volunteered the statement, "Let me kill myself. I killed her.”

The record indicates no error. Like counsel for appellant, we are not aware of any authority supporting a view that a defendant has a constitutional right to confess or make a statement. Neither are we inclined to fault the police officer. The statements defendant did make were correctly ruled admissible, since they were spontaneous, volunteered and not the result of custodial interrogation.

Last, defendant claims the prosecutor made improper closing argument by asserting, "I think the defendant knew what he was doing at the time”. While it is improper for the prosecutor to express a personal belief in the guilt of the defendant, it is not erroneous for the prosecutor to comment on the evidence and to suggest for the jury inferences from that evidence. In this case, the statement to which defendant objects was inextricably interwoven with references to the evidence. The addition of the words "I think”, the fact there was evidence to support the prosecutor’s claim and the further fact that it was in response to defense counsel’s assertion that defendant had not known what he was doing, make it clear that defendant was not denied a fair trial.

Affirmed.

       MCL 722.53; MSA 25.244(53).

       People v Leffew, 58 Mich App 533, 536; 228 NW2d 449 (1975), People v Coppernol, 59 Mich App 745, 750; 229 NW2d 913 (1975).

        People v Caldwell, 78 Mich App 690, 692; 261 NW2d 1 (1977).

       People v Page, 63 Mich App 177, 179-180; 234 NW2d 440 (1975).