text:
    PEOPLE v WIRTH
    Docket No. 77-1265.
    Submitted October 5, 1978, at Lansing.
    Decided November 7, 1978.
    Defendant Daniel Wirth was convicted, on his plea of nolo con-tendere, of being an aider and abettor to the crime of extortion in the Washtenaw Circuit Court, Edward D. Deake, J. He was originally charged with kidnapping and extortion. Defendant’s participation consisted of driving the perpetrators to the vicinity of the crime, picking them up when they called, delivering a package during the course of the crime and sharing in the proceeds. Defendant knew the perpetrators had weapons and planned to "score something big” but did not learn the nature of the crime until after its commission. Defendant appeals raising several issues. Held:

    1. The FBI agent questioning defendant in a house located about 100 feet from a tree to which a victim had been tied during the crime had probable cause to arrest defendant where he was informed that defendant had been seen in a car belonging to one of the primary suspects and was seen in the company of another primary suspect shortly after the ransom had been paid and that an eyewitness had made a statement connecting defendant to the two primary suspects.
    2. The voluntariness of a defendant’s statements to police is to be determined from the totality of the circumstances; a defendant’s refusal to sign a waiver form is only one factor in the totality of circumstances considered and does not, by itself, render defendant’s later statements inadmissible.
    3. One accused of aiding and abetting a specific intent crime cannot be held as a principal unless he himself possessed the required specific intent or unless he aided and abetted another in the perpetration of that crime knowing that the perpetrator had the required intent; intent is a question of fact to be inferred from the circumstances.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 41-45. 5 Am Jur 2d, Arrest §§ 44-49.

       5 Ám Jur 2d, Arrest §§ 44, 49.

       29 Am Jur 2d, Evidence §§ 611-613.

       21 Am Jur 2d, Criminal Law §§ 82,123.

       21 Am Jur 2d, Criminal Law § 443.

      4. An aider or abettor is criminally responsible for the acts of his principals when he knows the actual perpetrators had the required intent, and, in specific intent crimes, it is not necessary that the aider or abettor have knowledge of the perpetrators’ specific intent where he had knowledge that the perpetrators had the criminal intent to do what they planned.
    Affirmed.
    1. Arrest — Criminal Law — Searches and Seizures — Probable Cause — Prudent Person Test.
    Probable cause for a police officer to arrest and seize evidence exists where facts and circumstances would lead a reasonably prudent person to the honest belief that a felony had been committed and that the defendant participated therein.
    2. Appeal and Error — Arrest—Criminal Law — Probable Cause— Discretion.
    Once a trial court has found probable cause for an arrest the Court of Appeals will overturn such a ruling only where an abuse of discretion is shown.
    3. Criminal Law — Statements of Dependant — Voluntariness—To-tality of Circumstances — Refusal to Sign Waiver.
    The voluntariness of a defendant’s statements to police is to be determined from the totality of the circumstances; a defendant’s refusal to sign a waiver form is only one factor in the totality of circumstances considered and does not, by itself, render defendant’s later statements inadmissable.
    4. Criminal Law — Specific Intent Crimes — Aiding and Abetting— Inferences.
    One accused of aiding and abetting a specific intent crime cannot be held as a principal unless he himself possessed the required specific intent or unless he aided and abetted another in the perpetration of that crime knowing that the perpetrator had the required intent; intent is a question of fact to be inferred from the circumstances.
    5. Criminal Law — Preliminary Examination — Proof of Offense— Proof of Guilt — Elements of Crime.
    The prosecutor must show, at a preliminary examination, that the offense charged has been committed; while positive proof of guilt is not required, there must be evidence on each element of the crime charged or evidence from which those elements may be inferred.
    6. Criminal Law — Aiding and Abetting — Intent—Specific-Intent Crimes.
    An aider or abettor is criminally responsible for the acts of his principals when he knows the actual perpetrators had the required intent, and, in specific intent crimes, it is not necessary that the aider or abettor have knowledge of the perpetrators’ specific intent where he had knowledge that the perpetrators had the criminal intent to do what they planned.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F, Delhey, Prosecuting Attorney, and John M. Zukowski, Assistant Prosecuting Attorney, for the people.

      Hazlett & Judge and Toomey, Stewart & Bam-bery, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Allen and P. F. O’Connell, JJ.

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

   Per Curiam.

Defendant was convicted of being an aider or abettor, MCL 767.39; MSA 28.979, to the crime of extortion, MCL 750.213; MSA 28.410, following his plea of nolo contendere to that charge on December 13, 1976. Defendant was initially charged with kidnapping, MCL 750.349; MSA 28.581, and extortion but the kidnapping count was dropped as part of a plea bargain. Defendant was sentenced to 2 years and 6 months to 20 years in prison, and now appeals of right.

The kidnapping and extortion charges stemmed from a plot to kidnap members of the William Schulenberg family and hold them for ransom. The abduction took place in the evening of September 29, 1975, the ransom was paid on the morning of September 30, and those abducted were released on the morning of September 30.

Defendant’s role was to take the principals in the crime to the area of the Schulenberg home and later to pick them up when they called. Defendant also left a package at a designated spot during the course of the crime. For his part, defendant received 10% of the ransom, $4,400. When defendant dropped off the principals he saw that they carried a rifle and a shotgun. Defendant said he knew the plan was to "score something big” but he had no idea as to what crime was intended. According to defendant, he learned of the kidnapping when he heard about it on the radio on the morning of September 30.

On appeal defendant contends that an incriminating statement he made should have been excluded because it was the inadmissible fruit of a warrantless arrest made without probable cause. In order for an officer to make a warrantless arrest there must be circumstances that would lead a reasonably prudent person to the belief that a felony had been committed and that defendant had participated therein. People v Thatcher, 83 Mich App 527; 269 NW2d 210 (1978), People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978), MCL 764.15(c); MSA 28.874(c). Since the lower court has determined that there was probable cause, we review its ruling for an abuse of discretion. People v Thatcher, supra at 529.

Defendant was arrested on October 1, 1975, at a house which was located about 100 feet from a tree to which a member of the Schulenberg family was tied during the course of the crime. Police and FBI agents were investigating the crime and FBI agent Eiden was questioning defendant. Another agent phoned Eiden to inform him that defendant was seen in a car belonging to one of the primary suspects in the case, Todd Szynwelski, and was accompanied by the other primary suspect, Ken Royce, shortly after the ransom had been paid on the morning of September 30. Defendant and Royce had been seen arriving at the house then being investigated. Agent Eiden was also informed that one Mary Sequara had made a statement connecting defendant with Royce and Szynwelski. At this point Eiden told defendant the complexion of the interview had changed and that defendant was under arrest. We find that there was no abuse of discretion in the lower court concluding that these facts constituted probable cause to arrest defendant.

After being arrested, Eiden informed defendant of his rights by presenting him with a form enumerating the Miranda rights. Defendant read the form and refused to sign it, but he did initial a statement that he had read the form and declined to sign it. Shortly thereafter, defendant said he would tell what he knew. The agents then took defendant to the local FBI office. En route they stopped at defendant’s mother’s house to retrieve defendant’s share of the ransom. Defendant’s mother asked him if he wanted an attorney and defendant responded that he did not. At the FBI office defendant read a rights and waiver form identical to the one he had read earlier. This time defendant signed the form. Defendant then made an incriminating statement which he refused to sign on the advice of attorneys sent by his mother.

As previously noted, defendant’s statement was not inadmissible due to an invalid arrest. Defendant also contends the statement was inadmissible because it was involuntary and was obtained in violation of his right to remain silent. We find, as did the lower court, that the statement was voluntarily made and was admissible. The question of voluntariness is to be determined from the totality of the circumstances. People v Smith, 80 Mich App 106; 263 NW2d 306 (1977), People v Cutler, 73 Mich App 313; 251 NW2d 303 (1977). In this case we are convinced that defendant voluntarily waived his right to remain silent. Defendant indicated he wished to talk, twice he read and understood his rights, he signed a waiver form the second time, and he declined his mother’s initial suggestion to obtain counsel. Defendant’s initial refusal to sign the waiver form is only one factor in the totality of the circumstances considered, and it did not render defendant’s later statements inadmissible. People v Oliver, 63 Mich App 509; 234 NW2d 679 (1975), People v McClendon, 48 Mich App 552; 210 NW2d 778 (1973).

Defendant also questions whether he could be convicted of extortion as an aider and abettor where he allegedly did not have the requisite specific intent to commit the crime. Defendant attacks the propriety of both his bindover following his preliminary examination and his nolo con-tendere plea on the ground that the evidence did not show his specific intent to extort.

To be held criminally liable for a specific intent crime as an aider or abettor, a defendant must have had either the requisite specific intent or known that the actual perpetrator had the required intent. People v Frederick Lester, 78 Mich App 21; 259 NW2d 370 (1977), People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969). Intent is a question of fact to be inferred from the circumstances by the trier of fact. People v Spry, 74 Mich App 584; 254 NW2d 782 (1977), People v Sharp, 57 Mich App 624; 226 NW2d 590 (1975), It is likewise a factual issue whether a particular act or crime committed was fairly within the intended scope of the common criminal enterprise. People v Haack, 396 Mich 367; 240 NW2d 704 (1976), People v McGuire, 39 Mich App 308; 197 NW2d 469 (1972), People v Pearce, 20 Mich App 289; 174 NW2d 19 (1969), People v Poplar, supra.

An examining magistrate may bind a defendant over for trial only if he determines that an offense has been committed and that there is probable cause to believe the defendant committed it. People v Morris, 66 Mich App 514; 239 NW2d 649 (1976). In order to find probable cause there must be evidence on each element of the offense or evidence from which those elements may be inferred, but the elements need not be proven beyond a reasonable doubt. People v Oster, 67 Mich App 490; 241 NW2d 260 (1976), People v Smith, 49 Mich App 630; 212 NW2d 768 (1973). That ultimate finding is for the trier of fact. The magistrate’s determination is reviewed for an abuse of discretion. People v Melvin, 70 Mich App 138; 245 NW2d 178 (1976). In this case the only question concerned the element of intent, and there was sufficient evidence to infer that defendant had the requisite intent. Defendant’s disclaimers concerning specific intent could be rejected by the magistrate and the trier of fact. People v Haack, supra. There was sufficient evidence to bind over defendant.

Much the same reasoning that was applied to the propriety of the bindover can be applied to the validity of the nolo contendere plea. A factual basis must be established to support a plea of nolo contendere. GCR 1963, 785.7(3)(b)(ii). In this case the same facts supporting the bindover can support the plea. The question of whether defendant actually did have the necessary specific intent was a question of fact for the trier of fact, and by pleading nolo contendere defendant waived his right for the trier of fact to make that determination. However, there was ample evidence from which defendant’s intent could be inferred, and therefore acceptance of the plea was proper.

Defendant also argues that the bindover and conviction were improper because the magistrate and the circuit court found as a fact that defendant lacked the specific intent to extort and did not know of the specific intent his accomplices had. While these alleged findings could be construed as summaries of defendant’s position, we cannot agree with defendant’s contention on appeal even assuming, arguendo, that such findings were made. Defendant’s contention is that he was unaware of what intent his accomplices had. But an aider or abettor is criminally responsible for the acts of his principals when he knows the actual perpetrators had the required intent. Taken literally, defendant meets this test because he knew that the principals had the criminal intent to do what they planned. Defendant did not know what they planned, but he knew they had the specific intent to do whatever they had planned.

Defendant’s intent itself also supports our conclusion. It can be argued that defendant intended any and all consequences of the criminal undertaking. Defendant intended to partake in whatever crime was planned and he did not care what it was. He knew weapons were involved and this did not deter him. It could be concluded that defendant’s intent encompassed all crimes, including extortion. By the same token, the scope of the criminal undertaking with which defendant knowingly associated himself would be unlimited.

Finally, for policy reasons we cannot accept defendant’s argument. In effect, defendant is arguing that he can knowingly further criminal activity and avoid the concomitant criminal liability by intentionally ignoring the nature of the crime. Society cannot condone such criminal irresponsibility, and in this situation ignorance does not mean innocence.

Affirmed.

       Mary Sequara was an eyewitness to parts of the crime.

       Defendant points to the following statements, which are necessarily taken out of context, to indicate the finding:
      "Wirth knew that Todd and Kenny had intended to 'score something big’, * * * Defendant Daniel Wirth knew that something illegal was happening, or that his other two 'partners’ had intended to score something big.” (Trial court summarizing evidence during the plea proceedings.)
      "This defendant saw the weapons. He knew there was a score. He may not have known exactly what the crime was going to be, but he had put no limitation on his involvement.” (District court’s comment in overruling an objection to the bindover.)


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v LITTLE
    Docket No. 77-1270.
    Submitted October 3, 1978, at Lansing.
    Decided November 7, 1978.
    Ben C. Little was convicted of possession of controlled substances in Jackson Circuit Court, Gordon W. Britten, J. The offense occurred in a state prison camp where defendant was serving part of his sentence for a previous conviction. Defendant appeals, alleging (1) that his motion to dismiss should have been granted because there was insufficient evidence linking defendant to the controlled substances, (2) that the prosecutor failed to negate every reasonable theory consistent with defendant’s innocence, (3) that defendant presented prima facie evidence of legitimate possession of the controlled substances, and (4) that defendant did not orally waive his right to a jury trial, therefore, his nonjury trial was improper. Held:

    1. The prosecutor produced sufficient evidence on all elements of the offense charged. Contraband found in an envelope with defendant’s prison number on it constituted evidence which linked defendant to the controlled substance and would, at least, overcome defendant’s motion to dismiss.
    2. In this case the trier of fact did properly find every reasonable theory of defendant’s innocence was negated by the prosecution.
    3. A defendant has the burden of proof in establishing that he has legitimate possession of a controlled substance. Evidence is insufficient to show legitimate possession where defendant only showed the controlled substance could be obtained by prescription but failed to show that he ever had a prescription.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error §§ 105-108.
    Formal requirements of judgment of dismissal as regards appeala-bility. 73 ALR2d 250.

       21 Am Jur 2d, Criminal Law § 85. 29 Am Jur 2d, Evidence §§ 148, 226, 264, 266. 30 Am Jur 2d, Evidence §§ 1091, 1125, 1172, 1173.
    Modern status of the rules against having an inference upon an inference as a presumption upon a presumption. 5 ALR3d 100.

       25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 21, 45, 47.
    Validity and construction of statute creating presumption or influence of intent to sell from possession of specified quantity of illegal drugs. 60 ALR3d 1128.

       21 Am Jur 2d, Criminal Law § 219. 47 Am Jur 2d, Jury §§ 72-83. Sufficiency of waiver of full jury. 93 ALR2d 410.

      4. Oral waiver of a defendant’s right to trial by jury by defense counsel with defendant present and a signed waiver by defendant is sufficient to waive the jury.
    Affirmed.
    1. Appeal and Error — Criminal Law — Motion to Dismiss — Review.
    A motion to dismiss is reviewed by considering the evidence presented at the time of the motion in the light most favorable to the prosecution, and by determining whether there is evidence supporting each element of the charge.
    2. Criminal Law — Circumstantial Evidence — Prosecution—Reasonable Theories — Burden of Proof — Trier of Fact.
    The prosecution has the burden of proving that there is no reasonable innocent theory which will accord with the facts where the people’s case is based on circumstantial evidence; it is for the trier of fact to determine whether the prosecution has negated every reasonable theory consistent with a defendant’s innocence.
    3. Criminal Law — Circumstantial Evidence — Inferences.
    An inference based on circumstantial evidence must follow from such evidence with an impelling certainty and it is for the trier of fact to determine if the inference is compelling.
    4. Drugs and Narcotics — Legitimate Possession — Prescriptions— Burden of Proof.
    A defendant has the burden of proof in establishing that he has legitimate possession of a controlled narcotic; a defendant failed to present evidence of legitimate possession where he only showed that the controlled substance could be obtained by prescription but failed to show that he ever had a prescription for the substance (MCL 335.356; MSA 18.1070[56]).
    5. Criminal Law — Trial by Jury — Waiver—Statutes.
    A waiver orally made by defense counsel with defendant present in open court and signed by the defendant satisfies the statutory requirements necessary to properly waive a defendant’s right to a trial by jury (MCL 763.3; MSA 28.856).

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Myron E. Sanderson, Assistant Prosecuting Attorney, for the people.

      Domnick J. Sorise, Assistant State Appellate Defender, for the defendant on appeal.
    Before: V. J. Brennan, P.J., and Allen and P. F. O’Connell, JJ.

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

   Per Curiam.

Defendant was charged with and convicted of possession of five pills containing amobarbital and secobarbital which are controlled substances. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The offense occurred on May 7, 1976, in a state prison camp where defendant was serving part of his sentence for a previous conviction. Defendant was sentenced to a consecutive term of one to two years and now appeals.

Robert E. Malott, who was employed at defendant’s prison camp, discovered defendant in a 7-foot by 10-foot furnace room of the camp while checking on the whereabouts of another prisoner. The room was off-limits to prisoners and Malott asked defendant what he was doing there, to which defendant replied, "nothing”. Malott quickly searched the room and took defendant to the control office. In his search Malott discovered an envelope, of a type commonly used in the camp, with the following writing on it: "One a day, 141469 [defendant’s prison number] March 26th, 1976”. The envelope contained seven "water pills” which were not a controlled substance and the five pills which constituted the basis of defendant’s conviction. Malott found the envelope behind a fire extinguisher secured to a wall about one foot from where defendant was standing. Malott also saw a blue prison jacket, a belt, and a glass of water in the room but these items apparently did not belong to defendant.

When Malott and defendant left the furnace room, Malott padlocked the door. A short while later Malott found that the window of the room had been broken out from the inside. The door to the room was still locked. The implication from this was that someone besides defendant was in the furnace room when defendant was discovered. A person could have been concealed behind the furnace where Malott would not have seen him. The trial court states that there "very well could have been a person in the room * * * " and the prosecutor conceded in his closing argument that there could have been such a person.

Defendant’s primary contention on appeal is that there was insufficient evidence linking defendant to the controlled substances. In this vein, defendant argues that his motion to dismiss at the close of the people’s case should have been granted and that the prosecutor failed to negate every reasonable theory consistent with defendant’s innocence. A motion to dismiss is reviewed by considering the evidence presented at the time of the motion in the light most favorable to the prosecution, and by determining whether there is evidence supporting each element of the charge. People v De Clerk, 400 Mich 10, 18; 252 NW2d 782 (1977). The prosecutor’s duty to negate reasonable theories inconsistent with defendant’s guilt stems from the circumstantial nature of the evidence in the case. People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972).

Our review of the facts reveals that the prosecutor produced evidence on all elements of the offense charged. Primarily, defendant contends that evidence was lacking which linked defendant to the controlled substances. The contraband found in an envelope with defendant’s number on it, with other pills in it which were of a type prescribed for defendant, and found next to defendant, constituted evidence which would, at least, overcome defendant’s motion to dismiss.

We further find that the circumstantial evidence in this case supports defendant’s conviction. As defendant argues, in a case based on circumstantial evidence the prosecution has the burden of proving that there is no reasonable innocent theory in accord with the facts, and any inference involved must follow as an impelling certainty. People v Davenport, supra. However, it is for the trier of fact to determine whether the prosecution has negated every reasonable theory consistent with the defendant’s innocence. People v Fuller, 395 Mich 451, 455; 236 NW2d 58 (1975), People v Jablonski, 70 Mich App 218, 225; 245 NW2d 571 (1976). See also People v Edgar, 75 Mich App 467; 225 NW2d 648 (1977). And it is likewise for the trier of fact to determine if the inferences are compelling. People v Peterson, 63 Mich App 538, 547; 234 NW2d 692 (1975). In this case the trier of fact did find every reasonable theory of defendant’s innocence negated and the inferences used compelling.

On appeal, defendant also contends the trial court erred in denying a defense motion to dismiss based on, allegedly, defendant’s presentation of prima facie evidence of legitimate possession and the prosecution’s failure to present evidence negating legitimate possession. We do not accept defendant’s contention since we find that defendant failed to present evidence of legitimate possession. The only thing defendant showed was that the controlled substance could be obtained by a prescription. Defendant failed to show he ever had a prescription for the substance. MCL 335.356; MSA 18.1070(56).

Defendant’s final contention on appeal is that he did not properly waive his right to a jury trial. At the beginning of the trial, defense counsel stated:

"Your Honor, at this time we would also ask the Court if we could waive trial by jury.”

The trial court responded:

"All right. You may step forward then Mr. Little here, and waive trial by jury.”

Defendant then signed the written waiver of jury form. Defendant now contends this process was insufficient to waive a jury trial because defendant himself did not orally waive his right to a jury.

MCL 763.3; MSA 28.856 requires a written waiver of jury "made in open court”. Although the statute does not actually state a requirement of an oral waiver, at least one panel of this Court indicated such a requirement exists. People v Word, 67 Mich App 663; 242 NW2d 471 (1976). But Word did not say that a defendant himself need necessarily make the oral waiver. People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), which Word relied upon, was a case where there was no evidence of any waiver, oral or written, in open court. On the instant record it is abundantly clear that defendant desired to have his case heard by the trial judge and without a jury. There was a waiver in open court, and it was written by defendant and orally made by defense counsel with defendant present. The language and procedure used expressed a clear waiver of a jury trial and conformed with the statutory requirements.

Affirmed.

       Defendant contends that the trier of fact only considered one of his theories of innocence, i.e., defendant was "framed”. But in disagreeing with this theory and finding defendant guilty as charged, the trier of fact necessarily found that the envelope of pills was indeed defendant’s and not someone else’s envelope with defendant’s number mistakenly printed on it.


text:
    PEOPLE v NISWONGER
    Docket No. 77-1402.
    Submitted June 8, 1978, at Grand Rapids.
    Decided November 7, 1978.
    Bruce C. Niswonger was convicted of delivery of a controlled substance, Kent Circuit Court, Stuart Hoffius, J. Defendant appeals, alleging that the trial court erred in ruling that the prosecutor exercised due diligence in attempting to secure the presence of a res gestae witness and allowing admission into evidence of the witness’s preliminary examination testimony. Held:

    Appellate review of this issue is precluded because of the defendant’s failure to raise the issue in his motion for a new trial.
    Affirmed.
    Appeal and Error — Criminal Law — Witnesses—Evidence—Motion for New Trial.
    Appellate review of a defendant’s allegation of trial court error in admitting into evidence the preliminary examination testimony of a res gestae witness who was found to be unavailable for the trial and where production by the prosecutor was excused by the trial court is precluded where the defendant failed to raise the issue in his motion for a new trial.
    References for Points in Headnote
    5 Am Jur 2d, Appeal and Error § 556.
    58 Am Jur 2d, New Trial §§ 194-196.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      George S. Buth, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of unlawful delivery of a Schedule 3 controlled substance, contrary to MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). Defendant was sentenced to a term of 90 days in the county jail and appeals as of right. On appeal, defendant claims that the trial judge erred reversibly in finding that the prosecutor had exercised due diligence in attempting to secure the presence of a res gestae witness at trial and in allowing that witness’s testimony from defendant’s preliminary examination to be introduced at trial.

The alleged delivery took place at defendant’s home while Ms. Malone, a police informer, was present. Malone testified at defendant’s preliminary examination but did not appear at trial. At trial, the prosecutor made a motion to admit Malone’s preliminary examination testimony into evidence under MCL 768.26; MSA 28.1049, because she was unavailable for trial. After an evidentiary hearing, the trial judge found that the prosecutor had exercised due diligence in attempting to locate and produce the witness. Therefore, he allowed the preliminary examination testimony to be admitted at trial. Malone’s testimony seriously incriminated the defendant. After trial, defendant made a motion for a new trial but did not list the nonproduction of this witness or the use of the preliminary examination testimony as a reason for his motion for a new trial.

The prosecutor argues that appellate review is precluded because defendant did not list this reason in his motion for a new trial as required by People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). Although the facts in this case are distinguishable from the facts in Robinson, supra, we think that the policies behind the rule are applicable to this case. Therefore, we conclude that the rule announced in Robinson, supra, applies. The primary purpose of the Robinson rule is to prevent the ordering of what may be "useless” new trials, Robinson, supra, at 633, People v Allen, 76 Mich App 585; 257 NW2d 263 (1977). At the hearing on the motion for a new trial, the prosecutor must either produce the witness or explain why he cannot produce her. If the witness is produced, the trial court can determine whether her testimony is cumulative and if it is cumulative, a new trial would not be required. If the witness cannot be produced even though the prosecutor exercised due diligence in attempting to locate and produce her, a new trial would not be required. The hearing on the motion for a new trial gives the trial judge an opportunity to resolve these issues and the issue of whether the prosecutor exercised due diligence in attempting to produce the witness for trial, and thereby possibly avoiding the ordering of what may be a useless new trial. The resolution of these issues at a hearing on a motion for a new trial would serve the same function in this case.

The first difference between Robinson, supra, and this casé is that in this case, an evidentiary hearing was held at trial on the issue of the prosecutor’s due diligence. While this hearing gives the trial judge an opportunity at trial to evaluate the prosecutor’s efforts and does provide a record from which an appellate court could review those findings, the hearing does not fulfill all the purposes of a Robinson hearing, see Allen, supra, and cases cited therein. The hearing in this case did not give the trial judge an opportunity to consider any post-trial changes that may have possibly made the ordering of a new trial "useless”, see Allen, supra.

The other difference between this case and Robinson, supra, is that in this case the unproduced witness’s testimony from the defendant’s preliminary examination was introduced into evidence. Since this testimony was introduced at trial, it made available a record which permitted review of the determination of whether the witness’s testimony was cumulative. Therefore, at first glance, it appears that another function of the Robinson hearing was also satisfied in this case.

However, the gravamen of defendant’s argument on appeal is not that the jury was denied the benefit of this witness’s testimony but rather that the jury was denied the opportunity to observe this witness’s demeanor as she testified. The witness’s demeanor could have supported her testimony and been merely cumulative or it might have impeached her testimony. If the witness’s demeanor was cumulative of her testimony, a new trial would not be required. If the witness was produced at the hearing on the motion for a new trial, this would give the trial court an opportunity to determine whether any prejudice resulted to defendant from the fact that this witness’s preliminary examination testimony was introduced into evidence without her being present in court. The resolution of this issue may prevent the ordering of a possibly "useless” new trial.

Therefore, even though the factual setting in this case is different from Robinson, supra, the determinative issue of whether the prosecutor could produce this witness by exercising due diligence is the same in both cases. The policy behind the Robinson rule is equally applicable to this case. Therefore, we conclude that the rule announced in Robinson, supra, applies in this case.

Affirmed.

       The importance of having the testifying witness present in court while testifying so that the jury can observe her demeanor is well recognized. It is a part of defendant’s constitutional right of confrontation, US Const, Am VI; Const 1963, art 1, § 20, Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968). We recognize the constitutional aspects of defendant’s claim on appeal but conclude that the rule announced in People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), applies in this case.


text:
    AMER v CLARENCE A DURBIN ASSOCIATES
    Docket No. 77-1454.
    Submitted June 21, 1978, at Detroit.
    Decided November 7, 1978.
    On October 2, 1973, Mohammed A. Amer was allegedly injured in a slip and fall accident while crossing a concrete garage floor at the Michigan Humane Society Building in Pontiac where he was employed. Mohammed Amer and Hanem Amer, his wife, commenced an action for damages for personal injuries and for loss of conjugal fellowship against Clarence A. Durbin Associates, Inc., and John Doe Corporation. Defendant Durbin Associates was alleged to have been either the builder, contractor, subcontractor or designer of the building in which the accident happened. Defendant John Doe Corporation allegedly manufactured and sold construction and finishing materials for concrete floors to the builders of the building in which plaintiff allegedly fell.
    Through answers to interrogatories, filed by defendant Dur-bin, the plaintiffs learned that Van Horn Bros., Inc., played a role in the construction of the building. On September 27, 1976, the plaintiffs filed a motion to add necessary parties defendant. Van Horn Bros., Inc., was among those defendants sought to be added by the plaintiffs. The trial court on October 1, 1976, entered an order whereby the additional defendants were made parties to the action. On October 18, 1976, the plaintiffs filed an amended complaint which specifically named Van Horn Bros., Inc., as a defendant.
    Defendant Van Horn Bros., Inc., filed a motion, on November 12, 1976, for accelerated judgment based on the three-year statute of limitations. The trial court denied this motion. Defendant Van Horn Bros., Inc., appeals by leave granted. Held:

    1. Defendant Van Horn Bros., Inc., is not a necessary party to the action; therefore, the plaintiffs had to have commenced their action against that defendant within the limitations period.

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions §§ 272-287. 59 Am Jur 2d, Parties §§ 189, 192-198, 205.

       51 Am Jur 2d, Limitation of Actions §§ 272-287. 59 Am Jur 2d, Parties §§ 189, 192-198.

       51 Am Jur 2d, Limitation of Actions §§ 272-287. 59 Am Jur 2d, Parties §§ 189-191.

      2. It must be determined whether or not the filing .of the plaintiffs’ motion for leave to amend the complaint tolled the running of the statute of limitations. Such a determination in the first instance should be made by the trial court and should be based in part on the plaintiffs’ diligence in attempting to join the defendant.
    Reversed, and the matter remanded for a determination of the plaintiffs’ diligence.
    1. Limitation of Actions — Joint Tortfeasors — Statute of Limitations — Tolling of Statute — Pleading—Amendment of Pleading — Addition of Parties.
    The statute of limitations continues to run in favor of an alleged joint tortfeasor until he is made a party to the suit; where a plaintiff attempts to amend his pleadings to add a new party after the expiration of the statute of limitations, the. party sought to be added may avail himself of the statutory bar, unless the new party is a necessary party, or acquired his interest in the subject matter of the suit pendente lite, or where the amendment merely corrects a defect in the original proceedings.
    2. Action — Commencement of Action — Complaint—Adding Parties as Defendants — Court Rules.
    A court action is normally commenced with the filing of a complaint; this rule also applies when parties are added as defendants to a suit (GCR 1963, 101, 205.2, 206, 207).
    3. Action — Limitation of Actions — Added Parties — Compliance with Court Rules — Judge’s Discretion — Amended Complaint —De Novo Review — Dilatory Tactics.
    The question of whether a party seeking to add new parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable limitation period in favor of an added party is for determination in the first instance by the trial court; an added party may obtain the trial court’s review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations and the trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitation defense; it is then within the discretion of the trial court to grant or deny the motion based upon its evaluation of the circumstances in each case.

      Goodman, Eden, Millender & Bedrosian (by Richard A. Soble), for plaintiffs.

      Harvey, Kruse & Westen, P.C. (by Gary A. Maxi-miuk), for defendant Van Horn Bros., Inc.
    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.

The essential facts of this appeal are not in dispute. Plaintiff Mohammed Amer was allegedly injured on October 2, 1973, in a slip and fall accident. On July 9, 1975, plaintiffs filed a complaint in this action against Durbin Associates and John Doe Corporation. John Doe Corporation allegedly manufactured and sold construction and finishing materials for concrete floors to the builders of the building in which plaintiff allegedly fell. Through answers to interrogatories filed by defendant Durbin on March 17, 1976, plaintiffs became aware of the role of defendant Van Horn Bros., Inc., in the construction of the building. On September 27, 1976, plaintiffs filed a "motion to add necessary parties defendant”. The motion was based on GCR 1963, 205. Van Horn Bros., Inc., was among those defendants sought to be added. On October 1, 1976, the trial court entered an order whereby the additional defendants were "made parties to this action.” On October 18, 1976, plaintiffs filed an amended complaint which specifically named defendant Van Horn. Defendant Van Horn was served with this complaint on October 26, 1976.

On November 12, 1976, defendant Van Horn filed a motion for accelerated judgment based on the applicable three-year statute of limitations. The trial court denied defendant’s motion, holding that its order conferred jurisdiction over defendant and served to add defendant as a party; that defendant was a necessary party; and that the amendment cured a misnomer in the original complaint by substituting defendant for John Doe Corporation.

The parties agree that this action is controlled by the three-year statute of limitations in MCL 600.5805(7); MSA 27A.5805(7). The issue in dispute is whether the action was commenced against this defendant within that three-year limitations period.

In Forest v Parmalee (On Rehearing), 60 Mich App 401, 406-407; 231 NW2d 378 (1975), aff'd on other grounds, 402 Mich 348; 262 NW2d 653 (1978), this Court stated:

"According to Anno: Change in party after statute of limitations has run, 8 ALR2d 6, § 53, p 112, it is 'well settled’ that:
'Where a defendant is brought into an action for the first time upon the filing of an amended or supplemental complaint, the filing of the amendment constitutes the commencement of the action in so far as such new defendant is concerned. The statutory period runs until the time of the filing of the amendment, and if at that time the action is barred, a party thus subsequently brought in may avail himself of the plea.’
An exception to this rule is that the additional defendant may be brought in after the expiration of the statute of limitations where the new party is a necessary party, or acquired its interest in the subject matter of the suit 'pendente lite’ or where the amendment 'merely corrects a defect in the original proceeding’. 8 ALR2d 6, 112. * * * As a general rule, the statute of limitations continues to run in favor of an alleged joint tort-feasor until it is made a party to the suit. 8 ALR2d 6, § 58, p 120. 51 Am Jur 2d, Limitation of Actions, §§ 272, 277, pp 798, 800. See also Ciotti v Ullrich, 267 Mich 136, 138-139; 255 NW 179 (1934), for the general rule that suit is not considered having been commenced against a new defendant until that person is made a party.”

As to plaintiffs’ assertion that defendant is a necessary party, we disagree. Defendant is, at most, a joint tortfeasor. Plaintiffs have complete relief available from defendants already in the suit. Therefore, defendant is not a necessary party within the meaning of GCR 1963, 205. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 551. Cf. Wolff v Dalton, 28 Mich App 643, 646; 185 NW2d 189 (1970). Defendant’s presence in the suit may be desirable, but it is not necessary. See Forest v Parmalee, supra, at 406-407. The trial court thus erred in ruling that defendant was a necessary party. Because defendant is not a necessary party, plaintiffs must begin their action against defendant within the limitations period.

A court action is normally commenced with the filing of a complaint. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), GCR 1963, 101. That rule also applies when parties are added as defendants to a suit. Forest v Parmalee, supra, at 406-407. In the instant case, plaintiffs contend and the trial court agreed that the action against defendant commenced with the trial court’s order. Defendant argues that the trial court’s order does nothing more than grant plaintiffs leave to amend their complaint to include defendant as a party. Our review of GCR 1963, 205.2, 206, 207 and the Author’s Comments thereto in 1 Honigman & Hawkins, supra, persuades us that the defendant is correct and the trial court in error in this regard. We then are left with the issue of whether filing a motion for leave to amend a complaint tolls the statute of limitations.

Our review of the original opinion issued in Forest and the decision on rehearing indicates that, in appropriate circumstances, such a motion may have this effect. These opinions suggest that the deciding factor in this regard is a plaintiff’s diligence in attempting to join the defendant. This is also the approach adopted in Charpentier v Young, 83 Mich App 145; 268 NW2d 322 (1978). In Charpentier, this Court was faced with a fact situation similar to the one at bar and adopted a case by case approach. It left much discretion with the trial court, stating:

"[W]hether a party seeking to add parties to the litigation has complied with the court rules so as to entitle him to suspend the running of an applicable statute of limitations in favor of an added party, is for determination in the first instance by the trial court. An added party may obtain the trial court’s review of the circumstances leading up to the filing of the amended complaint by filing a motion for accelerated judgment based upon the statute of limitations. The trial court may then review de novo the procedural steps taken by the amending party to assure that dilatory tactics have not unjustly deprived the added party of his legitimate statute of limitations defense. It is then within the discretion of the trial court to grant or deny the motion based upon his evaluation of the circumstances in each case.” Charpentier v Young, supra, at 149-150.

The trial court in the instant case, however, did not make any determination concerning plaintiffs’ diligence in attempting to join defendant. Although the six-month interval between the receipt of answers to interrogatories which disclosed defendant’s role in the construction of the building and the filing of the motion to add parties suggests that plaintiffs were not as diligent as they could have been, we prefer to leave this issue for determination in the first instance by the trial court.

We lastly note that the argument that plaintiffs were merely trying to correct a misnomer in their original complaint is not persuasive. This end could have been accomplished by a motion to amend their complaint. Instead, they moved to add defendant as an additional party.

Accordingly, the denial below of defendant’s motion for accelerated judgment is reversed. We remand this cause to the trial court for its determination of plaintiffs’ diligence. Costs to abide the final outcome. We retain no jurisdiction.

       Compare Forest v Parmalee, 53 Mich App 505; 219 NW2d 806 (1974), with Forest v Parmalee (On Rehearing) 60 Mich App 401; 231 NW2d 378 (1975), aff'd on other grounds, 402 Mich 348; 262 NW2d 653 (1978).


text:
    ROBINSON v HARRIS
    Docket No. 77-1799.
    Submitted June 16, 1978, at Detroit.
    Decided November 7, 1978.
    Marjorie A. Harris, now Marjorie A. Robinson, and Lee D. Harris were divorced in Ohio in 1964 and Marjorie was awarded custody of the minor children of the marriage. Lee Harris subsequently moved to Michigan. In 1976 Marjorie Robinson brought a petition, under the Uniform Reciprocal Enforcement of Support Act, for an order requiring Lee Harris to pay child support. The Wayne Circuit Court, Michael L. Stacey, J., ordered that defendant pay child support. Defendant appeals, alleging that the children have been alienated from him by their mother and have become embittered toward him to the point that any meaningful relationship is impossible, and that because the plaintiff has thus taken all benefits of fatherhood from him he should no longer be burdened with support payments. Held:

    The court order requiring payment of support should be upheld. The defendant’s obligation to make child support payments is independent of his right to visit the children. Additionally, because the plaintiff has been receiving aid from the State of Ohio for the support of the children, the defendant is obliged to reimburse the State of Ohio under the Uniform Reciprocal Enforcement of Support Act, thus the defendant’s argument that suspension of his obligation would serve to punish the plaintiff is without meaning because the State of Ohio is the real party in interest.
    Affirmed.
    1. Divorce — Child Support — Obligation—Right of Visitation.
    A divorced parent’s obligation to make child support payments pursuant to a court order is independent of his right to visit the children; therefore, a father who claims that his divorced wife has alienated the children and that it has become impossible to establish any meaningful relationship with his children, who are in the custody of their mother, is still obligated to make the support payments ordered by the court.

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation §§ 801, 802, 870. 59 Am Jur 2d, Parent and Child § 45.
    Violation of custody or visitation provision of agreement or decree as affecting child support payment provision, and vice versa. 95 ALR2d 118.

       59 Am Jur 2d, Parent and Child § 9.

      2. Divorce — Child Support — Statutes—Uniform Reciprocal Enforcement of Support Act.
    The State of Ohio, which has made support payments to the custodial parent of the minor children of a divorced couple, is entitled to reimbursement under the Uniform Reciprocal Enforcement of Support Act from the noncustodial parent who is obliged under a Michigan court order to make child support payments to the custodial parent (MCL 780.159; MSA 25.225[9]).

      Joseph F. Chiesa, for plaintiff.

      Gordon Knox, 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.

   Per Curiam.

This appeal arises from an order of support entered by the trial court against the defendant.

The facts indicate that over the course of years following the divorce between the defendant and the plaintiff, the children of that former union, in the custody of the mother, became increasingly embittered toward their father. Matters have now reached a state where any meaningful relationship between the father and his children is virtually impossible. The defendant claims that under such circumstances, where the plaintiff has taken from him all the benefits of fatherhood, the defendant should not be burdened with the obligations of that position. He thus objects to the entry of a court order requiring him to pay child support.

While we can understand defendant’s disinclination to support children with whom he cannot establish a meaningful relationship, we must reject his contention that his obligation to pay child support has been abrogated. Defendant’s obligation to make child support payments is independent of his right to visit the children. See Kane v Kane, 241 Mich 96, 100; 216 NW 437 (1927), Henshaw v Henshaw, 83 Mich App 68; 268 NW2d 289 (1978), Stevenson v Stevenson, 74 Mich App 656, 658 n 1; 254 NW2d 337 (1977). See also People v Faculak, 325 Mich 56, 59, 37 NW2d 709 (1949).

Defendant has cited some cases which have held that support payments may be suspended or can-celled to punish the wrongful conduct of the custodial parent or to force compliance with court orders regarding visitations. See Pronesti v Pronesti, 368 Mich 453; 118 NW2d 254 (1962). Neither of these considerations is now in issue.

The custodial parent, the mother in this case, is receiving aid from the State of Ohio for the support of her minor children. Under the Uniform Reciprocal Enforcement of Support Act, adopted in both Ohio and Michigan, the State of Ohio is entitled to reimbursement from a person liable under a proper order of support where the state has itself made support payments. MCL 780.159; MSA 25.225(9). Thus, the real party in interest on the side of the plaintiff is the State of Ohio. Whatever the decision of this Court, the named plaintiff will not be affected. To speak in terms of punishing the named plaintiff for her conduct regarding the children or of forcing compliance with court orders by withholding support misses the mark.

We hold that defendant has failed to show that the trial court committed clear legal error in entering the child support order. The decision of the trial court is affirmed.


text:
    PEOPLE v DAVIS
    Docket No. 77-2040.
    Submitted August 31, 1978, at Lansing.
    Decided November 7, 1978.
    Robert A. Davis was convicted, on his plea of guilty, of armed robbery, Ingham Circuit Court, Thomas L. Brown, J. In exchange for the guilty plea, several other pending charges against the defendant were dismissed. At sentencing, the defendant was given credit for time served on the armed robbery but not for the time served on the charges which were dismissed. Defendant appeals, alleging that the failure of the trial court to grant credit for time served on the dismissed charges was error. Held:

    The trial court erred by not granting credit for time served on the dismissed charges. The statute which requires that a defendant be given credit for jail time served while awaiting trial is to be liberally construed in accordance with its remedial purpose, which is to put an accused who cannot post bail because of his indigency on an equal status with his counterpart who can. The only way to equalize the total prison time of the defendant who posted bond and received no punishment on the dismissed charges is to grant the jailed defendant credit on his sentence for jail time served on all the dismissed charges.
    Affirmed; sentence modified.
    1. Criminal Law — Sentencing—Statutes—Credit for Time Served.
    A statute which provides that a defendant be given credit for jail time served while awaiting trial is to be liberally construed in accordance with its remedial purpose, which is to put an accused who cannot post bail because of his indigency on an equal status with his counterpart who can (MCL 769.11b; MSA 28.1083[2]).
    2. Criminal Law — Sentencing—Plea of Guilty — Credit for Time Served.
    A defendant who was arrested on several charges and who pleads guilty on one charge in exchange for dismissal of the others is entitled to receive credit for the time served on the charges which are dismissed.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 545, 547-551.
    Right to credit for time spent in custody prior to trial or sentence. 77 ALR3d 182.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Lawrence P. Schneider, Assistant Prosecuting Attorney, for the people.

      Reid & Reid, P.C. (by Lawrence J. Emery), for defendant on appeal.
    Before: Danhof, C.J., and Bronson and M. F. Cavanagh, JJ.
   Per Curiam.

Defendant entered into a plea bargain with the prosecution in which he pled guilty to the crime of armed robbery, MCL 750.529; MSA 28.797, in exchange for the dismissal of numerous other pending charges. At sentencing, defendant was given credit for time served on the armed robbery charge on which he was convicted, but not for the time served on the other charges which were dismissed as a result of his guilty plea. Defendant contends that the failure to grant credit for time served on these dismissed charges is a violation of MCL 769.11b; MSA 28.1083(2). We agree.

This Court has stated on numerous occasions that this jail credit statute is to be liberally construed in accordance with its remedial purpose. See, e.g., People v Lyles, 76 Mich App 688; 257 NW2d 220 (1977), People v Finn, 74 Mich App 580; 254 NW2d 585 (1977); People v Chattaway, 18 Mich App 538; 171 NW2d 801 (1969). This purpose "is to put an accused who cannot post bail due to his indigency on an equal status with his counterpart who can”. People v Andrews #1, 52 Mich App 719, 726; 218 NW2d 379 (1974), rev’d on other grounds, 392 Mich 775; 220 NW2d 36 (1974). Accord, People v Pruitt, 23 Mich App 510, 513; 179 NW2d 22 (1970).

Applying these precepts to the present case, it becomes clear that defendant must be given credit for time served on the charges dismissed as a result of the guilty plea. A defendant arrested on numerous charges who posts bond on all the charges and subsequently pleads guilty to one charge in return for a dismissal of the rest receives no punishment on the dismissed charges. Consequently, in accordance with the purpose behind the jail credit statute, a defendant similarly situated except for his inability to post bond must also suffer no punishment on the dismissed charges. Since he has already served time on these charges, the only way he can again be placed on an equal footing with his counterpart is to be given credit for the time served on all the charges encompassed by the guilty plea, including those which were dismissed.

In the present case this was not done. Thus, pursuant to OCR 1963, 820.1(7), defendant shall be given an additional credit of 119 days, computed as follows: 20 days for the time served on the dismissed possession of heroin charge, and 99 days on the dismissed pandering charge.

Affirmed as modified.


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

text:
    SAMUEL REITER PAINTING COMPANY v BILL MIEDLER HOMES, INC.
    Docket No. 77-2251.
    Submitted June 12, 1978, at Detroit.
    Decided November 7, 1978.
    Leave to appeal denied, 406 Mich 911.
    Samuel Reiter Painting Company brought an action for fraud in district court against Bill Miedler Homes, Inc., Zeev Miedler, and several other defendants. The district court entered a judgment in favor of the plaintiff against Bill Miedler Homes and Zeev Miedler only. Zeev Miedler appealed to the circuit court. The Oakland Circuit Court, James S. Thorburn, J., upon plaintiff’s motion to dismiss, dismissed the appeal for the reason that Miedler did not file a bond in an amount equal to one and one-quarter times the amount of the district court judgment. Zeev Miedler appeals by leave granted, alleging that because he does not wish to stay execution on the judgment he should not be required to file a stay bond. Held:

    The court rules governing appeals to the circuit court which were in effect at the time of Miedler’s appeal to circuit court were worded in language which indicated an intent to make the provisions mandatory. The filing of a bond in the amount of one and one-quarter times the district court judgment was a requirement for appeal of that judgment. The appeal was therefore properly dismissed.
    Affirmed.
    N. J. Kaufman, P.J., dissents. He would hold that the word "shall” in the court rules is mandatory unless, other considerations compel a contrary conclusion, and that the appellant here has the right to accept the risk of execution on the judgment without any further risk that the appeal would be dismissed if no stay bond is filed. Judge Kaufman would remand to circuit court for consideration on the merits.
    References for Points in Headnotes

       20 Am Jur 2d, Courts § 86.
    73 Am Jur 2d, Statutes §§ 204-208.

       73 Am Jur 2d, Statutes §§ 22-25.

       5 Am Jur 2d, Appeal and Error § 1044.

       16 Am Jur 2d, Constitutional Law § 485 et seq.

       4 Am Jur 2d, Appeal and Error §§ 364-374.

      Opinion op the Court
    1. Appeal and Error — Court Rules — Construction.
    The Court of Appeals is required to give words their normal meaning when construing the language of court rules.
    2. Words and Phrases — Mandatory Language — Court Rules.
    The words "require” and "shall”, and the negative "shall not”, in a court rule indicate an intent to make the provisions of the rule mandatory.
    3. Appeal and Error — Circuit Courts — District Courts — Bond— Court Rules — Dismissal op Appeal.
    A circuit court properly dismissed an appeal from a district court judgment where the appellant did not file a bond in the amount of one and one-quarter times the amount of the district court judgment as required by the court rules in effect at the time the appeal was taken (GCR 1963, 701.7, 705.9).
    4. Constitutional Law — Equal Protection — Similar Circumstances and Conditions.
    The right to equal protection of the law is not denied to a person by a state law or course of procedure where the same law or course of procedure would have been applied to any other person in the same state under similar circumstances and conditions.
    Dissent by N. J. Kaupman, P.J.
    5. Words and Phrases — Statutes—Court Rules — Mandatory Language.

      The word "shall” in a statute or court rule means that the provision is mandatory unless other considerations compel a contrary conclusion.

    6. Appeal and Error — Circuit Court — District Court — Bond—Dismissal of Appeal.

      A party who wishes to appeal an adverse district court judgment to circuit court may do so without ñling a bond to stay execution of the judgment although by doing so he accepts the risk of execution; failure to Me such a bond is not suMcient reason for the circuit court to dismiss the appeal.

      Leib & Leib (by Elliot P. Kramer), for plaintiff.

      Samuel W. Barr, for defendant Zeev Miedler.

      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.

On January 13, 1977, a judgment for $3,640.35 was entered against appellant in district court. Appellant appealed the judgment to the circuit court; however, that appeal was dismissed by the circuit court judge on motion of plaintiff because appellant did not file a bond for one and one-quarter times the amount of the district court judgment. We granted leave to appeal.

The circuit judge dismissed appellant’s claim of appeal, holding that GCR 1963, 705.9 (repealed July, 1977) and GCR 1963, 701.7 (revised July, 1977) required appellant to file a bond for one and one-quarter times the amount of judgment as a condition of maintaining the appeal in circuit court. Appellant does not wish to stay execution on the district court judgment. He argues that, therefore, he should not be required to file a stay bond. Rather, he asserts that a bond covering the costs of appeal should be the only bond required.

The court rules governing appeals to the circuit court have been amended since appellant filed his claim of appeal in the circuit court. The new rules have prospective effect only. 400 Mich lxix (1977); Moore v Spangler, 401 Mich 360, 368; 258 NW2d 34 (1977). Therefore, we will consider appellant’s claim under the court rules in effect at the time appellant filed his claim of appeal. We do not determine whether the same result would follow under the current court rules.

Old Court Rule 705.9 provided in pertinent part:

".9 Appeals; Required Acts of Appellant. In all appeals, within the time limited for taking an appeal, the appellant shall do the following:
"(a) File in the circuit court a bond as required under subrule 701.7; * * * .” (Emphasis added.)

Old Court Rule 701.7 provided in part:

".7 Bond on Appeal; Stay of Proceedings. Unless exempted by law, the appellant shall file a bond with his claim of appeal, cross appeal, or order following appeal. The bond on appeal
"(1) shall be in a penalty not less than $200 and except for appeals from probate court, if the appeal is by a person against whom a claim has been asserted, it shall be not less than one and one-quarter the amount of the judgment or claim allowed. In appeals from the probate court, the court in which the bond is filed may in its discretion fix the bond in an amount found owing to the estate where a fiduciary’s account has been disallowed or a claim has been allowed against a fiduciary incident to his administration of his trust or estate. In judgments for possession of land, the bond shall be in the amount and on the conditions provided for by statute.” (Emphasis added.)

In construing these court rules, we are required to give words their normal meaning. Cf. MCL 8.3a; MSA 2.212(1). Old Court Rule 705.9 referred to required acts of appellant and it directed that the appellant shall file a required bond. Old Court Rule 701.7 provided that an appellant shall file a bond and the rule directed that the amount of bond shall not be less than a certain amount.

Both "require” and "shall” indicate an intent to make the provisions mandatory. Smith v School District No. 6, 241 Mich 366, 368-369; 217 NW 15 (1928); Law Department Employees Union v City of Flint, 64 Mich App 359, 368, 235 NW2d 783 (1975). Further, the use of the negative "shall not” also indicates an intent to make the provision mandatory. Connecticut Mutual Life Ins v Wood, 115 Mich 444, 448-449; 74 NW 656 (1898).

In view of the clearly mandatory language contained in the court rules, we hold that the circuit court did not err in requiring a bond amounting to one and one-quarter the amount of the district court judgment.

Appellant argues that the mandatory bond in this case violates the equal protection provisions of the Federal and state constitutions. We reject that contention. The right to equal protection of the law is not denied by a state law or course of procedure where the same law or course of procedure would have been applied to any other person in the same state under similar circumstances and conditions. Moore v Spangler, supra, at 370, citing Tinsley v Anderson, 171 US 101; 18 S Ct 805; 43 L Ed 91 (1898). In the instant case, appellant is not required to do anything not required of all other similarly situated appellants in the circuit court. Therefore, we reject his equal protection argument.

The decision of the circuit court is affirmed.

N. J. Kaufman, P.J.

(dissenting). I must respectfully dissent.

In construing a statute (or court rule), words are to be given their ordinary meanings unless a different interpretation is indicated. Goethal v Kent County Supervisors, 361 Mich 104, 111; 104 NW2d 794 (1960), Hunn v Madison Heights, 60 Mich App 326, 332; 230 NW2d 414 (1975). Specifically, the word "shall” means that the statute or court rule is mandatory — unless other considerations compel a contrary conclusion. Lundberg v Corrections Commission, 57 Mich App 327, 329; 225 NW2d 752 (1975). In the case at bar, a contrary conclusion is indicated.

The Committee Notes to former GCR 1963, 701 begin as follows:

"The rules contain a new provision requiring an appeal bond to be filed. Appeal bonds are presently required by virtue of statutory direction. While the fíling of an appeal bond is directory only, such filing is a requisite to the stay of further proceedings in the lower court.” 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 505. (Emphasis added.)

Similarly, the Authors’ Comments to Rule 701, 3 Honigman & Hawkins, supra, p 512, state:

"This requirement of an appeal bond applies to all appeals, whether by claim of appeal, order allowing appeal, or cross appeal. Sub-rule 701.7. It is said to be a ’directory’ requirement, however. See Committee Comment, supra. An improper or insufficient bond is not a jurisdictional defect. The circuit court has jurisdiction of an appeal which has been timely filed with the lower court and for which the fee has been paid. Sub-rule 701.3.” (Emphasis added.)

The above commentaries are based on sound authority. In considering a parallel statutory provision which also directed the filing of a stay bond on appeal, the Supreme Court stated:

"In support of his motion to dismiss appeal from the order dismissing writ of garnishment, defendant points to the requirement of CL 1948, § 650.21 (Stat Ann § 27.2611) for filing of a bond in order to stay proceedings on appeal and says that, because plaintiff has filed no such bond, defendant has properly proceeded to judgment against the garnishee defendant and that, in consequence, plaintiffs appeal in regard to the garnishment has become moot. The bond is a prerequisite to stay of proceedings but not to consideration by this Court on appeal of the correctness of the trial court’s order dismissing garnishment.” Beyerlein v Ashburn, 334 Mich 13, 15-16; 53 NW2d 666 (1952). (Emphasis added.)

To the same effect see Michigan Bean Co v Burrell Engineering & Construction Co, 306 Mich 420, 426; 11 NW2d 12 (1943) ("Burrell’s failure to file a supersedeas bond on appeal did not preclude it from appealing, but it did subject itself to the risk of having a writ of execution issued during the time the appeal was pending.”), and Hendricks v McCausey, 299 Mich 157, 160-161; 299 NW 847 (1941).

Based upon these authorities, I would hold that under Michigan law appellant has the right to accept the risk of execution without any further risk that the appeal will be dismissed if no stay bond is filed. I would remand to the circuit court for consideration of the merits of the appeal.

       We note that appellant does not allege that he is financially unable to pay the bond and that the bond requirement, therefore, prevents the exercise of his right to appeal.


text:
    MAKUCK v McMULLIN
    Docket No. 77-4061.
    Submitted October 3, 1978, at Escanaba.
    Decided November 7, 1978.
    Ernest R. Schaal sustained fatal injuries when he fell from a parade float. Ruth Makuck, administratrix of Schaal’s estate, and Helen R. Schaal brought an action for damages for wrongful death and for loss of consortium alleging that Jeffrey K. Craig was negligent in operating the automobile pulling the float, that the owner of the vehicle, Donald Bauer, was liable for negligent entrustment of the automobile to Craig under the Michigan ownership statute, and that Delores McMullin was liable under the dramshop act for serving decedent while intoxicated. Counsel for plaintiffs introduced new theories of liability in his opening statement and all defendants moved for directed verdicts alleging surprise. Counsel admitted he had no evidence to support the theories pled and asked the court to dismiss the complaint without prejudice to permit plaintiffs to reinstate the lawsuit. Iron Circuit Court, Ernest W. Brown, J., granted defendants’ motions for directed verdicts and denied a motion by plaintiffs for voluntary dismissal without prejudice. The court also denied plaintiffs’ motion to set aside the directed verdicts and give plaintiffs an opportunity to amend their pleadings. Plaintiffs appeal. Held:

    1. The directed verdicts were proper. Where plaintiffs’ counsel sketches a completely different cause of action in his opening statement than was set forth in his complaint, and can offer no proofs to support the theories pled, it is clear that no issue of fact exists for a jury’s determination.
    2. Plaintiffs should not be allowed to amend their complaint where defendants were surprised by new theories and a different cause of action in plaintiffs’ opening statement after they had expended time and effort in extensive discovery in preparation for defending against the theories pled in the original complaint.

      References for Points in Headnotes

       24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit §§ 3, 6-12.

       24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 9.

       24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 27. 75 Am Jur 2d, Trial §§ 491-495.

       17 Am Jur 2d, Continuance §§ 24-26. 61 Am Jur 2d, Pleading § 312.

      Affirmed.
    1. Dismissal and Nonsuit — Voluntary Dismissal — Judge’s Discretion — Prejudice.
    The grant or denial of a motion by a plaintiff for voluntary dismissal after a responsive pleading has been filed is within the discretion of the trial court; however, the court should dismiss an action only if no prejudice will result to the defendant (GCR 1963, 504.1).
    2. Dismissal and Nonsuit — Protection of Defendant — Court Rules.
    The purpose of a court rule is to protect a defendant from the abusive practice of dismissal after much time and effort has been put into a lawuit; any dismissal should be on terms and conditions which protect the defendant. GCR 1963, 504.1[2]).
    3. Dismissal and Nonsuit — Court Disfavor — Opening Statement— New Cause of Action — Failure of Proofs — Jury Question-Directed Verdict.
    Generally, dismissing an action or directing a verdict at the close of a plaintiffs opening statement is not looked upon with favor by the courts; however, where counsel for plaintiffs sketched a completely different cause of action in his opening statement than was set forth in the pleadings, and freely admitted that he could offer no proofs on the theory pled, it is clear that there existed no issue of fact for the jury’s determination and a directed verdict was proper.
    4. Pleading — Amendment of Pleading — New Theories — Surprise— Prejudice.
    A trial court may properly deny a plaintiffs motion to amend his complaint, even if made on the day of trial, where defendants were undeniably surprised by the plaintiffs new theory, offered only after time and effort had been expended in extensive discovery in preparation for defending against the theories pled in the original complaint.

      Wisti & Jaaskelainen (by Michael E. Makinen), for plaintiffs.

      McNeil, Mouw, Lori & Torreano, for defendants Jeffrey K. Craig and Donald Bauer.

      Fisher & Omdahl, for defendant Delores Mc-Mullin.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

The present action arose out of an accident which allegedly occurred on July 6, 1974. In their first amended complaint, plaintiffs alleged that decedent, Mr. Schaal, suffered a fatal injury when defendant Jeffrey Craig, the driver of the car in question, which was owned by defendant Donald Bauer, suddenly started or jerked the parade float on which the decedent was riding and which was being towed by the car, causing Mr. Schaal to fall from the float, land on his head and sustain fatal injuries. Plaintiffs alleged that defendant Bauer was liable on a theory of negligent entrustment of his automobile to Craig; that defendant Craig was liable for negligent operation of the automobile; and that defendant McMullin was liable for serving alcoholic beverages to plaintiffs’ decedent in her bar when he was already intoxicated, in violation of the dramshop act, MCL 436.22 et seq.; MSA 18.993 et seq.

Trial to a jury began on December 13, 1976, but proceeded only through plaintiffs’ opening statement, at which time defendants’ motions for directed verdicts were granted. The trial court also denied plaintiffs’ motion for a voluntary dismissal without prejudice. Plaintiffs appeal as of right, alleging that the trial court erred in granting defendants’ motions while denying plaintiffs’ motion.

In his opening statement, counsel for plaintiffs stated that he intended to show that defendant Craig was negligent, not in the manner in which he operated the automobile, but in permitting plaintiffs’ decedent to get on the float in an intoxicated condition. Counsel further stated that plaintiffs would show, not that decedent was served in the Spa Bar while intoxicated, but that defendant McMullin gave a six-pack of beer to defendant Craig, who permitted decedent to drink some of that beer.

At the close of plaintiffs’ opening statement, all defendants moved for directed verdicts, alleging surprise. Counsel for plaintiffs admitted that his intended proofs were at variance with the complaint, and that he had no evidence to offer in support of the theories pled. However, he asked that the trial court dismiss the complaint without prejudice to permit plaintiffs to reinstitute the lawsuit, apparently with proper pleadings. Subsequently, on January 4, 1977, plaintiffs moved to set aside the directed verdicts, on grounds that the court should have given them an opportunity to amend their pleadings. The trial court denied this motion as well.

We think the trial court acted properly, and affirm.

The grant or denial of a motion for voluntary dismissal after a responsive pleading has been filed is within the discretion of the trial court, GCR 1963, 504.1. However, the court should dismiss an action only if no prejudice to defendant will result. This Court discussed voluntary dismissal in African Methodist Episcopal Church v Shoulders, 38 Mich App 210, 212; 196 NW2d 16 (1972):

"Plaintiffs argue that the grant or denial of a voluntary dismissal is within the sound discretion of the trial judge. Roberson v Thomas (1968), 13 Mich App 384 [164 NW2d 544]. We agree; however, in exercising that discretion the trial judge is to weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays. Granger v Lundberg (1971), 32 Mich App 462 [189 NW2d 14]. Normally, such a motion should be granted unless defendant will be legally prejudiced as a result. Durham v Florida East Coast Railway Co. (CA 5, 1967), 385 F2d 366. As the purpose of GCR 1963, 504.1(2) is to protect defendant from the abusive practice of dismissal after much time and effort has been put into a lawsuit, any dismissal should be on terms and conditions which protect defendant. See American Cyanamid Co v McGhee (CA 5, 1963), 317 F2d 295.”

In the case at bar defendants, having invested considerable time and money in preparing to defend against the causes of action pled, would be subjected to further expense in defending a new cause of action if the court had granted plaintiffs’ motion for dismissal without prejudice. We find no abuse of discretion in refusing to dismiss without prejudice in this case.

Dismissing an action or directing a verdict at the close of a plaintiff’s opening statement is not looked upon with favor by the courts, Ambrose v Detroit Edison Company, 380 Mich 445; 157 NW2d 232 (1968). In the instant case, however, counsel for plaintiffs sketched a completely different cause of action in his opening statement than was set forth in the pleadings, and freely admitted that he could offer no proofs on the theory pled. In such circumstances, it is clear that there existed no issue of fact for the jury’s determination, and a directed verdict was proper, cf. Tait v Nash, 27 Mich App 446; 183 NW2d 591 (1970).

As to the claim that the trial court should have permitted plaintiffs to amend their complaint, we note that no motion to amend appears on the record of trial. Moreover, the trial court would have been correct in denying a motion to amend even if made on the day of trial, for defendants were undeniably surprised by plaintiffs’ new theory, offered only after time and effort had been expended in extensive discovery in preparation for defending against the theories pled, cf. Ball v Render, 64 Mich App 148; 235 NW2d 90 (1975).

Affirmed. Costs awarded to defendants.


author: Per Curiam. R. M. Maher, J.

text:
    PEOPLE v LEMANSKI
    Docket No. 77-4226.
    Submitted October 5, 1978, at Escariaba.
    Decided November 7, 1978.
    Karen Lemanski was convicted of fraudulently receiving aid to dependent children support payments, Sanilac Circuit Court, Allan E. Keyes, J. The defendant appeals, alleging that certain remarks of the prosecutor constituted an improper appeal to the jurors’ civic duty and to their individual financial interests as taxpayers. Held:

    The remarks of the prosecutor were improper; however, the remarks were not such as to give rise to a miscarriage of justice. Therefore, the unobjected to remarks were harmless error.
    Affirmed.
    R. M. Maher, J., dissented. He would hold that the remarks were so prejudicial that a curative instruction would not have removed the prejudice to the defendant. He would reverse.
    Opinion of the Court
    1. Criminal Law — Welfare Fraud — Remarks by Prosecutor— Harmless Error — Failure to Object — Miscarriage of Justice.
    Remarks by a prosecutor during a defendant’s trial for fraudulently receiving aid to dependent children support payments which constitute an appeal to the jurors’ civic duty and to their individual interests as taxpayers are improper; however, such remarks are harmless error where no objection has been made to the remarks and a curative instruction would have cured any prejudice to the defendant, unless there has been a miscarriage of justice shown.
    Dissent by R. M. Maher, J.
    2. Criminal Law — Welfare Fraud — Prosecutor’s Remarks — Curative Instruction — Failure to Object.

      Remarks by a prosecutor during a defendant’s trial for fraudu

      lently receiving aid to dependent children support payments which constitute an appeal to the jurors’ civic duty and to their individual interests as taxpayers are improper and should be the basis for reversing the defendant’s conviction, despite the defendant’s failure to object, where the prejudice caused by the remarks could not have been cured by a curative instruction to the jury.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 300, 301, 317.
    Counsel’s appeal in civil case to self-interest of jurors as taxpayers, as ground for mistrial, new trial, or reversal. 33 ALR2d 442.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, J. Anthony Sykora, Prosecuting Attorney, and Philip E. Lomason, Assistant Prosecuting Attorney, for the people.

      Brisbois & Sturtz, for defendant on appeal.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

Defendant was convicted of fraudulently receiving aid to dependent children support payments in violation of MCL 400.60; MSA 16.460. On September 19, 1977, she was sentenced to two years probation, the terms of which included a fine, court costs and restitution. A six-month county jail sentence was to be imposed if defendant failed to satisfy the terms of probation.

Defendant appeals, objecting to certain remarks of the plaintiff, which defendant contends constituted an improper appeal to the jurors’ civic duty and to their individual financial interests as taxpayers. While the remarks to which the defendant now objects were improper, the prosecutor’s argument clearly was not such as to give rise to a

"miscarriage of justice”. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Small, 67 Mich App 580, 586; 242 NW2d 442 (1976). See also MCL 769.26; MSA 28.1096. Neither was the plaintiff’s argument comparable to the very prejudicial course taken by the prosecutor in People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975), or People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), lv den, 402 Mich 835 (1978).

In reviewing the evidence, we find that the proofs of the people for conviction were overwhelming. Further, defendant made no objection to the plaintiff’s remarks at trial; the remarks were not so heinous that their effect could not have been cured by a cautionary instruction. Therefore, we find the unobjected-to remarks to be harmless error. People v Small, at 585-586 and cases cited therein. People v Swan, 56 Mich App 22; 223 NW2d 346 (1974).

People v Miller, 49 Mich App 53; 211 NW2d 242 (1973), and People v Hatfield, 46 Mich App 149; 207 NW2d 485 (1973), have no application to the case at bar, since the late filing of a brief does not constitute an admission. Defendant’s additional claims of error are without merit, under MRE 801(c) and People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975).

Affirmed.

R. M. Maher, J.

(dissenting). I respectfully dissent, for I cannot agree that the prosecutor’s remarks in this case were so inoffensive that they can be considered harmless.

In his opening statement, the prosecuting attorney characterized the offense with which defendant was charged as receiving "Department of Social Services’ money, welfare money, tax money, your money and my money fraudulently”. In his closing arguments, he returned to this theme, saying:

"Now, we all know where the A.D.C. money comes from, you’re all paying for it, there are people who need it desparately. Those people are entitled to it but those people that take advantage of the system must be stopped and I am asking you to stop them.”

This is the sort of civic duty argument which has long been condemned by this Court, People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), People v Meir, 67 Mich App 534; 241 NW2d 280 (1976).

Not content with this improper argument, the prosecutor thereafter sought to bolster his case by putting the prestige of his office behind it, saying:

"I am an agent for the State, you are the State, you are the people of the State. I am, therefore, your agent, Mrs. Lemanski’s agent as well. I have a duty to present the facts to you clearly, not deceptively. Not to create any smoke screens, not to deviate, but to present them to you as clearly as possible.”

Such remarks are also improper, People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970), People v Erb, 48 Mich App 622; 211 NW2d 51 (1973).

Subsequently, he urged the jury in evaluating the actions of Department of Social Services employees to remember that "they work for us, too”. Then, returning to his original theme, the prosecutor said:

"[W]e don’t want people to go hungry, to starve, no shelter, to go unclothed. For her to take advantage of this deprives other people and she did take advantage of it.”

This is not a case of an isolated remark which could have been cured by an instruction had defendant timely objected, cf. People v Blassingame, 59 Mich App 327; 229 NW2d 438 (1975). In this case "an instruction, given the repeated efforts of the prosecution to appeal to the prejudices of the jury, would not have cured any prejudice”. People v Meir, supra, at 538.

I agree with Judge (now Justice) Levin’s comment in People v Farrar, supra, at 299:

"Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial.”

I would reverse.


text:
    KENNEDY v AUTO-OWNERS INSURANCE COMPANY
    Docket No. 78-806.
    Submitted October 3, 1978, at Escanaba.
    Decided November 7, 1978.
    Dennis A. Kennedy, a pedestrian, was injured when struck by an automobile. He was insured by a policy of automobile insurance issued by Auto-Owners Insurance Company. Kennedy claimed he was entitled to work loss benefits, and when Auto-Owners refused to pay, Kennedy brought an action against Auto-Owners for a declaratory judgment of liability and for a determination of benefits. The Alger Circuit Court, William F. Hood, J., found that Kennedy was entitled to benefits and awarded benefits in an amount equal to earnings from a full-time job. At the time of the accident, plaintiff was temporarily unemployed, having left a summer job to return to college for the fall term. Auto-Owners appeals, alleging that Kennedy is not entitled to work loss benefits or, alternatively, that the trial court’s determination of benefits was in error. Held:

    1. Kennedy is entitled to receive work loss benefits. The intent of the Legislature as expressed in the no-fault automobile insurance statute was to compensate accident victims for loss of income whether from full-time or part-time employment.
    2. The trial court’s determination of benefits was in error. The amount of benefits should be determined upon the basis of the plaintiff’s past work record as a student and part-time employee.
    Remanded for further proceedings.
    1. Appeal and Error — Statutes—Construction—Intent of Legislature.
    It is the purpose of the Court of Appeals, when construing a statute, to determine and to give effect to the intent of the Legislature.
    References for Points in Headnotes

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

       Am Jur 2d New Topic Service, No-Fault Insurance § 29.

       3 Am Jur 2d, Agreed Case §§ 23, 29.

      2. Automobiles — Insurance—No-Fault Insurance — Work Loss Benefits — Temporarily Unemployed Persons — Statutes.
    The intent of the Legislature in enacting the work-loss provision of the no-fault automobile insurance statute was to compensate for work loss even those persons temporarily unemployed at the time of their injury; the statute provides for compensation regardless of whether the victim was employed full time or part time (MCL 500.3107, 500.3107a; MSA 24.13107, 24.13107[1]).
    3. Automobiles — Insurance—No-Fault Insurance — Work Loss Benefits — Temporarily Unemployed Persons — Statutes.
    Work loss benefits for temporarily unemployed persons under the no-fault automobile insurance statute are to based upon previous earnings, not future possibilities (MCL 500.3107a; MSA 24.13107[1]).
    4. Automobiles — Insurance—No-Fault Insurance — Work Loss Benefits — Level of Benefits.
    A trial court erred in determining the level of work loss benefits payable under a no-fault automobile insurance policy based upon a full-time year-round job to a college student who had left his summer job to return to college and was injured during this period of unemployment; benefits should be awarded on the basis of the student’s past work record.
    5. Trial — Discretion of Court — Evidence—Additional Proofs.
    It was within a trial court’s discretion to permit a party to offer additional proofs after the case had been submitted on an agreed statement of facts and had been argued by counsel where the party did not seek to contradict anything in the agreed statement of facts but sought only to prove additional facts necessary to the decision of the court.

      Nebel & Revord, for plaintiff.

      Hansley, Neiman, Peterson, Beauchamp, Stupak & Bergman, P.C., for defendant.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

Plaintiff was struck by an automobile while walking along a road in Alger County. He suffered severe damage to his left leg, necessitating repeated surgery, requiring him to wear a leg cast for many months, and leaving him with a shortened left leg.

Plaintiff was insured under a policy of automobile insurance issued by defendant Auto-Owners Insurance Company. When defendant refused to pay plaintiff’s claimed work loss benefits, as authorized by MCL 500.3107; MSA 24.13107, plaintiff brought this action for a declaratory judgment of liability and for a determination of benefits. The trial court found that plaintiff was entitled to work loss benefits, and awarded him an amount equal to earnings from a full-time job from the date of the accident to the date of judgment. The court further ordered payment of benefits to continue as long as plaintiff continued disabled, up to the statutory maximum of 36 months. From that judgment defendant brings this appeal, alleging that plaintiff is not entitled to work loss benefits and, alternatively, that the trial court erred in determining the amount of benefits to which plaintiff is entitled.

Resolution of the issues presented in this case requires that we construe the work loss benefits provisions of the no-fault insurance statute, MCL 500.3107; MSA 24.13107 and MCL 500.3107a; MSA 24.13107(1). In so doing, we keep in mind that our aim is to determine and to give effect to the intent of the Legislature, see Attorney General ex rel Insurance Commissioner v Michigan Property & Casualty Guaranty Ass'n, 80 Mich App 653; 263 NW2d 918 (1978), and cases cited therein.

During the 1974-75 school year plaintiff had been a student at Northern Michigan University; at the time of the accident he had enrolled for the 1975-76 year. During the summer plaintiff had been employed full time, his last job earning him a wage of $3.25 per hour. During the first semester of the preceding school year, plaintiff had been employed part time by the university.

Defendant first contends that because plaintiff was not employed at the time of the accident, he suffered no loss of wages and is therefore not entitled to any work loss benefits whatsoever. This argument, however, ignores the clear intent of the Legislature to compensate for work loss even those persons temporarily unemployed at the time of the injury. This intent was made clear by MCL 500.3107a; MSA 24.13107(1), which provides:

"Subject to the provisions of section 3107(b), work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.”

Defendant argues that plaintiff is not a temporarily unemployed person within the meaning of § 3107a because he voluntarily left his job to return to college. Defendant contends that the Legislature intended to compensate only those temporarily unemployed persons who intended to return to the same job or at least to a similar, full-time job. We do not think the Legislature so intended to limit the class of unemployed persons eligible for benefits. Nothing in the statute expressly limits eligibility for work loss benefits to full-time employees. Section 3107 (MCL 500.3107; MSA 24.13107) provides that benefits are payable for "work loss consisting of loss of income from work an injured person would have performed * * * if he had not been injured”. We think a reasonable interpretation of the statute requires a finding that the Legislature intended to compensate accident victims for all loss of income, whether from full-time or part-time employment, resulting from injuries suffered in an automobile accident. Clearly, if plaintiff can show that he would have been employed part-time or seasonally but for his injury, he has suffered loss of income as a result of that injury, for which loss he should be compensated.

There remains the question of how to determine the amount of benefits to which plaintiff is entitled. The trial court looked to plaintiff’s work history as the basis for its decision on the award of benefits. In this we think the court was correct. By adopting § 3107a, providing that work loss benefits for temporarily unemployed persons should be based on income for the last month of employment prior to the accident, the Legislature clearly indicated its intention that work loss benefits be based on previous earnings, not future possibilities.

The trial court, however, relying on § 3107a, awarded plaintiff monthly benefits on the basis of a full-time, year-round job paying $3.25 per hour. In this we think the court erred. MCL 500.3107; MSA 24.13107 clearly limits recovery of work loss benefits to "loss of income from work which an injured person would have performed” had he not been injured, Struble v Detroit Automobile Inter-Insurance Exchange, 86 Mich App 245; 272 NW2d 617 (1978). Plaintiff is entitled to year-round payments for full-time work only if he would have performed such work had he not been injured. The trial court in his findings of fact concluded:

“Except for the disability resulting from his injuries, plaintiff would have obtained employment while attending school. Plaintiff would have sought off-campus employment, because a school rule limited on-campus student employment to 20 hours a week. In addition to his work during the school year, plaintiff would have obtained full-time employment during the summer recess. If he had not planned to return to college in the fall of 1975, he would have obtained full-time employment.”

Nowhere did the court indicate a finding that plaintiff would have worked full time at $3.25 per hour while attending college, nor would the evidence before the court support such a finding.

We therefore remand to the trial court for a new determination of the level of benefits to which plaintiff is entitled. If on the basis of plaintiff’s past work record the court determines that he would have worked full time during the summer and part time during the school year, benefits shall be awarded on that basis.

Defendant also claims that the trial court erred in permitting plaintiff to offer additional proofs after the case had been submitted for decision on an agreed statement of facts and argued by counsel. We note that plaintiff did not seek to contradict any fact in the agreed statement of facts, but simply sought to prove additional facts necessary to the decision of the court. It is within the discretion of the trial court to permit such additional proofs, even after argument, Thomas Canning Co v Johnson, 212 Mich 243; 180 NW 391 (1920). That the court had orally indicated his intent to enter judgment for plaintiff is irrelevant, judgment not having issued, Nemes v Smith, 37 Mich App 124; 194 NW2d 440 (1971).

Remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No costs, construction of a statute being involved.

       Although this section was added by 1975 PA 311, effective December 22, 1975, it has been held to be retroactive to the date of the originad enactment of the no-fault statute, Harper v Progressive Casualty Ins Co, 79 Mich App 764; 263 NW2d 1 (1977).

       For authority that the Legislature intended to compensate seasonally-employed workers, see the legislative analysis quoted in Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978).