author: N. J. Kaufman, J. Danhof, C.J.

text:
    PEOPLE v GOLDSMITH
    Docket No. 78-3014.
    Submitted October 19, 1979, at Detroit.
    Decided December 5, 1979.
    Leave to appeal applied for.
    Aimer K. Goldsmith was convicted of assault with intent to commit murder and possession of a firearm during the commission of a felony, Wayne Circuit Court, Victor J. Baum, J. Defendant appeals. Before the start of jury deliberations the court gave an instruction that a jury unable to reach a verdict has failed to accomplish its purpose and gives ammunition to those who oppose the jury system and to bear this in mind in their deliberations. Defendant claims that the trial court’s instruction improperly coerced the jury into bringing in a verdict. Held:

    The court went beyond the bounds of propriety. The instruction was intimidating and coercive because it could cause a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement. Such results have no place in a fair criminal justice system.
    Reversed and remanded.
    Danhof, C.J., dissented. He would hold that because the defendant failed to object and there was no miscarriage of justice on the facts, the "no objection, no review” rule should be applied. Furthermore, he believes that the court’s instructions, read as a whole, would not cause a juror to abandon his conscientious dissent and defer to the majority for the sake of reaching agreement. He would affirm.
    Opinion of the Court
    1. Criminal Law — Instructions to Jury — Predeliberation Instructions — Intimidating and Coercive Instructions — Jury Agreement — Fair Verdict.
    A charge to the jury, before they deliberate, which instructs them that a jury unable to reach a verdict has failed to accomplish its purpose, and each time an indecisive jury fails ammunition is given to those who oppose the jury system which requires a unanimous vote of all twelve jurors for conviction or acquittal and to bear this in mind in their deliberations, is intimidating and coercive because it could cause a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement; such results have no place in a fair criminal justice system.

      References for Points in Headnotes

       76 Am Jur 2d, Trial § 1055.

       5 Am Jur 2d, Appeal and Error § 553.
    75 Am Jur 2d, Trial §§ 906, 907.

      Dissent by Danhop, C.J.
    2. Appeal and Error — Criminal Law — Instructions to Jury — Failure to Object — Miscarriage op Justice — Statutes — Court Rules.

      A defendant’s failure to object to jury instructions, where an opportunity to make objection was granted at trial, precludes appellate review of such instructions under the "no objection, no review’’ rule unless a miscarriage of justice would otherwise result (MCL 768.29; MSA 28.1052, GCR 1963, 516.2).

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

      Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   N. J. Kaufman, J.

Defendant was convicted of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm in the commission of a felony, MCL 750.227(b); MSA 28.424(2), by a Wayne County Circuit Court jury. He was sentenced to imprisonment for 5 to 15 years on the assault conviction and to a two-year consecutive sentence on the felony-firearm conviction. Defendant appeals as of right under GCR 1963, 806.1.

Defendant raises a myriad of allegations in this appeal, only one of which warrants reversal. Defendant argues the trial court’s instruction improperly coerced the jury into bringing in a verdict. We agree. In its instruction upon the jury’s duties, the court went beyond the bounds of propriety. At first, the instructions presented no problem. The court apprised the jurors that they were to enter the deliberations with an open mind and a willingness to give serious consideration to each other’s opinions. They were to deliberate with a view to reaching unanimous agreement, if it could be done without sacrificing individual judgment.

At this point the court’s charge went from an instructive, informative one to one that was intimidating and coercive. The court stated:

"Let me remind you that when a jury is unable to reach a verdict, the jury has not accomplished its purpose. A jury unable to agree, therefore, is a jury which has failed in its purpose. Each time such an indecisive jury fails, ammunition is given to those who oppose the jury system as we know it, a system that requires a unanimous vote of all twelve jurors for either conviction or acquittal. As you deliberate, please bear this in mind.”

The leading case in Michigan which thoroughly considered the issue of jury coercion in the supplemental charge context is People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974). In that case, the Supreme Court expressed a disfavor with the use of Allen- type charges due to the danger of possible coercive effects, and recommended ABA jury standard 5.4 for prospective use in deadlocked jury situations.

It is important to note that Sullivan, supra, dealt with a deadlocked jury situation whereas the instant instruction was given prior to the jury’s initial deliberations. In deadlocked jury situations, instructions such as that recommended in ABA 5.4 serve several purposes. They encourage the jury to work harder in their deliberations, but hopefully do not coerce a verdict. They additionally serve as a judicial economy measure by serving to avoid the time and expense of convening another trial. The potential coercive effect of this type of charge is then tolerated to a certain extent due to the positive purposes it serves. See Sullivan, supra at 333-334.

These purposes need not be served in a predeliberation setting as in the case at bar. The jury needs no additional encouragement to reach a verdict since it is not even known whether or not they will have a difficult time in their deliberations in the first place. From a policy standpoint, then, the potential coercive effect of the sort of instruction contemplated in Sullivan, supra, should not be tolerated in a predeliberation setting since no counterbalancing purposes are served by its use. This becomes of even greater significance when one considers that the instant instructions were far more coercive and intimidating than those contemplated and recommended in Sullivan, i.e., ABA 5.4. See footnote 1. And, as stated in Sullivan, supra at 342, "Any substantial departure therefrom shall be grounds for reversible error”.

The instructions given did substantially depart from the recommended ABA instruction. Moreover, the instructions as given were such that they could have caused a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement. Such results have no place in a fair criminal justice system. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

D. C. Riley, J., concurred.

Danhof, C.J.

(dissenting). This prosecution arose out of an incident on January 6, 1978, at about 3 a.m. That evening, Sharon Moore and James Hollis, went to a gambling house on Chene Street in Detroit. When they left at the same time, Hollis found a flat tire on his car. It appeared that someone had removed the cap from the valve stem and let the air out. He testified he "didn’t like the looks of it”. As a result, he asked Sharon Moore for a ride home. Moore and Hollis were driving westbound on 1-94 freeway when she noticed a car approximately four car lengths behind her, but not catching up. The next thing she knew, the car was next to her; she heard a gunshot, turned her head and saw defendant (she had known defendant for 14 months) hanging out the passenger side of the car, holding a gun. After the first shot, her car began to leave the road and spun three times. Each time the car spun, she saw defendant hanging out of the other car shooting back — she heard the sound of three shots and saw fire coming from the gun. Her car then violently left the road.

At the first shot, Hollis leaned forward to see around Moore and observed defendant. (he had known defendant for approximately six years) leaning out the window of the passing car, holding a carbine — when the car got about two car lengths ahead, three more shots were fired. Hollis saw fire "jumping from the muzzle of the gun each time Kelly fired * *

Police officers transported Moore, who was wounded, and Hollis to a hospital. Within 20 minutes after the arrival of the police, statements were taken from Moore and Hollis. Both identified "Kelly” as the shooter. The police later observed bullet holes (four entrance and five exit holes) in Moore’s auto. A spent slug was found in her car. When defendant was arrested, a .30-caliber bullet was found on his person. A State Police expert concluded that both bullets were .30-caliber, manufactured by Winchester Western.

Defendant testified that he was at home, asleep, at the time of the alleged incident. He claimed that a man named "Kinslow” had threatened Hollis’ life some time in 1971 or 1972.

James Hollis was called in rebuttal and testified that Kinslow was his friend, never an enemy, and that he had known Kinslow for eight years.

I do not believe that the challenged instruction is reversible error. In context, the impact of the instruction is significantly attenuated:

"Any verdict which you reach will have to be unanimous. That means all twelve jurors will have to agree to a verdict of either guilty or not guilty.
"You should enter into your deliberations with an open mind, with a willingness to give serious consideration to the opinions of each other.
"Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement unanimously, if it can be done without sacrifice of individual judgment. Each juror must decide the case for himself or herself, but only after an impartial consideration of the evidence with his fellow jurors.
"No juror should surrender his honest conviction or belief as to what the weight or effect of the evidence is solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict. However, in the course of deliberations a juror should not hesitate to reexamine his own views and to change his opinion if convinced it is erroneous.
"Let me remind you that when a jury is unable to reach a verdict, the jury has not accomplished its purpose. A jury unable to agree, therefore, is a jury which has failed in its purpose. Each time such an indecisive jury fails, ammunition is given to those who oppose the jury system as we know it, a system that requires a unanimous vote of all twelve jurors for either conviction or acquittal. As you deliberate, please bear this in mind.”

GCR 1963, 516.2 provides:

"Objections. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

A similar requirement is contained in MCL 768.29; MSA 28.1052.

Defendant did not object to the above instruction even though an opportunity to make objection was granted. This Court has often followed the "no objection, no review” rule unless a miscarriage of justice would otherwise result. See, People v Haney, 86 Mich App 311, 318; 272 NW2d 640 (1978), People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977). I do not find a miscarriage of justice present in this case.

The majority relies on People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974), which dealt with supplemental instructions to a deadlocked jury. Sullivan adopted ABA standard jury instruction 5.4 as an instruction which would generate discussion toward the resolution of the case but avoid forcing a decision.

The majority feels that even a Sullivan (ABA standard) instruction should not be tolerated before deliberation since no purposes are served by its use.

I believe that such an instruction is more appropriate and less coercive before deliberation (In fact, ABA instruction 5.4 by its terms may be given prior to deliberation. See Sullivan, 392 Mich at 335). The instruction orients a jury to its role and minimizes the potential for juror coercion, for each juror will be told not to sacrifice individual judgment to majority opinion. A post deadlock instruction presents a much greater potential for coercion because the deadlocked jury has come to the trial judge "on the horns of a dilemma” seeking an answer to its problem. Thus, any instruction given by the judge will be taken to heart and, in isolation from the other instructions, will take on greater importance. On the other hand, a predeliberation instruction is only one of many instructions. Since it is not presented as a solution to a deadlock, it will not be given special significance by the jury. It still serves the purposes of judicial economy and of encouraging the give and take of deliberation without doing violence to individual judgment.

Having concluded that a predeliberation instruction should not be tolerated, the majority concludes that the instant instruction was a substantial departure from ABA 5.4. Initially, it is not clear that the Supreme Court intended to apply its "substantial departure” rule to a predeliberation instruction. Sullivan dealt only with a supplemental instruction given after deliberation. Even applying this rule, I do not believe the court’s instruction was a "substantial departure” in the sense of significantly increasing coercion. Prior to the instruction, the jury was told to "deliberate with a view to reaching an agreement unanimously, if it can be done without sacriñce of individual judgment” and that "No juror should surrender his honest conviction or belief as to what the weight or effect of the evidence is solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict”. (Emphasis added.) Read as a whole, I do not believe that the instruction could have caused a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement. On the facts of this case, I do not find a "miscarriage of justice” necessitating reversal.

I would affirm.

       The popular name for this instruction came from the United States Supreme Court’s approval of the charge in Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).

       ABA Project on Minimum Standards for Criminal Justice, Trial by Jury, Standard 5.4:
      " 'Length of deliberations; deadlocked jury.
      " '(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
      " '(i) that in order to return a verdict, each juror must agree thereto;
      " '(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
      " '(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
      " '(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
      " '(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
      " '(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
      " '(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.’ ”


source: Caselaw Access Project

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

license: Public Domain

text:
    LOTOSZINSKI v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Docket No. 78-3303.
    Submitted October 2, 1979, at Lansing.
    Decided December 5, 1979.
    Leave to appeal applied for.
    Plaintiff Mary K. Lotoszinski was injured on June 3, 1971, when the motorcycle on which she was a passenger collided with an automobile owned by Richard Hunter and driven by Norma Hunter. The Hunters were covered by an insurance policy, issued by Auto Owners Insurance Company, which provided coverage of $10,000 per person, $20,000 per accident for total disability connected with the operation of the automobile. This coverage met the statutorily required minimum limits for that time. Subsequent to the accident, Auto Owners paid $10,000 to Ronald Cordon, the operator of the motorcycle, under the Hunters’ policy. Thereafter, plaintiff and her mother, Margaret Lotoszinski, commenced an action against the Hunters in Shiawassee Circuit Court. The plaintiff was awarded $180,000 for her injuries, while her mother obtained a judgment in excess of $10,000. Auto Owners paid the judgment in favor of Margaret Lotoszinski, thereby exhausting all of the proceeds of the Hunters’ insurance policy. Finding the Hunters uncollectible, the plaintiff filed claims with State Farm Mutual Automobile Insurance Company under the uninsured motorist provisions of policies that both the plaintiff and her mother held with State Farm. These policies mandated arbitration of all claims made under the uninsured motorist provision. Plaintiff brought an action in Ingham Circuit Court against State Farm seeking a judgment that State Farm was required to arbitrate her claims. The court, Jack W. Warren, J., ordered that the claims be arbitrated. At arbitration plaintiff was denied recovery, based upon the fact that the tortfeasors were insured up to the minimum requirements and, thus, in the opinion of the majority of the arbitration panel, were not uninsured. The circuit court subsequently denied plaintiffs motion to vacate the decision of the arbitration panel. The plaintiff appeals. Held:

      References for Points in Headnotes

      4 Am Jur 2d, Appeal and Error § 158.
    5 Am Jur 2d, Arbitration and Award § 145.

       7 Am Jur 2d, Automobile Insurance §§ 136, 138.
    What issues are arbitrable under arbitration provision of uninsured motorist insurance. 29 ALR3d 328.
    Automobile insurance: what constitutes an "uninsured” or "unknown” vehicle or motorist, within uninsured motorist coverage. 26 ALR3d 883.

      The arbitrators did not exceed their authority in their ruling. There are no circumstances in this case which fit any of the exceptions to the rule that, in most instances, an arbitrator’s factual or legal conclusions will not be disturbed by the courts.
    Affirmed.
    N. J. Kaufman, J., dissented. He would hold that the arbitrators’ decision was arbitrary and a clear error of law and that the Court of Appeals may grant relief. He would allow the plaintiff to recover under the uninsured motorist provisions of her policy and her mother’s policy on the basis that as far as the plaintiff was concerned, the tortfeasors were uninsured as there was no liability coverage available to the plaintiff for her injuries.
    He would reverse.
    Opinion of the Court
    1. Arbitration and Award — Factual and Legal Conclusions — Appeal and Error — Court Rules.
    An arbitrator’s factual or legal conclusions will not, in most instances, be disturbed by the courts; there are limited exceptions to this rule (GCR 1963, 769.9[1]).
    Dissent by N. J. Kaufman, J. 2. Arbitration and Award — Automobiles — Insurance — Uninsured Motorists.

      A decision of an arbitration panel that an injured plaintiff could not recover under the uninsured motorist provision of her or her mother’s automobile insurance policies because the tortfeasor against whom a judgment was entered in favor of plaintiff was insured was arbitrary and constituted a clear error of law where the driver of the motorcycle on which the plaintiff was riding recovered from a tortfeasor’s insurer, as did the plaintiffs mother in an action derivative to the plaintiff’s cause of action, thereby exhausting the limits of the insurance coverage of the tortfeasor, who was unable to pay a judgment in the plaintiffs favor, leaving the tortfeasor, in effect, uninsured as far as the plaintiff was concerned.

      Stiles, Fowler, Dudley & Tuttle, for plaintiff.

      Fraser, Trebilcock, Davis & Foster, for defendant.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   D. C. Riley, J.

Following an automobile accident, plaintiff sought recovery under the uninsured motorist provisions of policies which plaintiff and her mother held with defendant. Plaintiff requested arbitration on this matter pursuant to the terms of the policy. The arbitrators concluded that plaintiff was not entitled to recovery. On June 20, 1978, an Ingham County circuit judge entered an order denying plaintiff’s motion to vacate the arbitration award. Plaintiff appeals as of right, claiming that the arbitrators exceeded their authority in reaching their decision.

In most instances, an arbitrator’s factual or legal conclusions will not be disturbed by the courts. North American Steel Corp v Siderius, Inc, 75 Mich App 391, 399-400; 254 NW2d 899 (1977), Detroit Automobile Inter-Insurance Exchange v Ayvazian, 62 Mich App 94, 97; 233 NW2d 200 (1975). GCR 1963, 769.9(1), sets out limited exceptions to this rule including instances where the arbitrators have exceeded their authority.

We do not find any exception applicable to the instant case. It was plaintiff who submitted the issue to arbitration, thus negating any possible claim that the award exceeded the scope of the arbitration agreement. See Smith v Highland Park Board of Education, 83 Mich App 541, 546; 269 NW2d 216 (1978), Nor can it be said that the arbitrators acted with manifest disregard of the law, as the instant award is not in conflict with any existing Michigan law. See, Detroit Automobile Inter-Insurance Exchange v Ayvazian, supra, at 98. Therefore, the arbitration award will not be vacated.

Affirmed. Costs to defendant.

Danhof, C.J., concurred.

N. J. Kaufman, J.

(dissenting). I find it necessary to lodge my dissent to the position taken by my colleagues. A factual review is in order to highlight the reasons for my decision.

The parties to this proceeding have stipulated to a concise statement of facts. These facts provide, in pertinent part, that the accident out of which this claim arose involved a collision between a motorcycle and an automobile. The plaintiff was a passenger on the motorcycle which was operated by one Ronald Cordon. The automobile was owned by a Richard Hunter and driven by a Norma June Hunter. At the time of the accident on June 3, 1971, the Hunters owned an insurance policy with Auto Owners Insurance Company which provided coverage of $10,000 per person, $20,000 per accident, for total disability connected with the operation of the automobile. This coverage met the statutorily required minimum limits at this time.

Subsequent to the accident, Auto Owners paid Ronald Cordon $10,000 under the Hunters’ insurance policy. Thereafter, plaintiff, who was seriously injured in the accident, and her mother, Margaret Lotoszinski, filed suit against the Hunters in Shiawassee County Circuit Court. Plaintiff was awarded $180,000 for her injuries, while her mother obtained her own judgment in excess of $10,000. Auto Owners paid the judgment of Margaret Lotoszinski, thereby exhausting all of the proceeds of the Hunters’ insurance policy.

Finding the Hunters uncollectible, the plaintiff, who garnered nothing from the Hunters’ insurance policy with Auto-Owners, proceeded against the instant defendant under the uninsured motorist provisions of policies that both the plaintiff and her mother held with defendant. Each of these policies provided for liability coverage in the amount of $10,000 per person, $20,000 per accident, for bodily injury occasioned by the negligence of an uninsured motorist. Further, each of these policies mandated arbitration of all claims made under the uninsured motorist provisions.

Accordingly, plaintiff proceeded to arbitration but was denied recovery under the policies. The majority opinion of the arbitrators emphasized the fact that the tortfeasors were insured up to the minimum requirements and, thus, were not uninsured. Accordingly, irrespective of whether plaintiff actually reaped any benefits from the tortfeasor’s exhausted coverage, defendant’s uninsured motorist coverage was not applicable.

It is at this point that I must differ from the majority position of my colleagues, which affirmed the arbitrator’s decision. It would be unconscionable to deny plaintiff recovery on the facts of this case. In what seems a grossly inequitable distribution, the Hunters’ insurance coverage was split up between the operator of the motorcycle and the plaintiffs mother, who presented a purely derivative claim in the first place. Thus, plaintiff, the recipient of a $180,000 jury award to attest to the seriousness of her injuries, was not able to recover from the Hunters’ insurer. Now, the majority position denies her recovery under her own policy’s uninsured motorist provision because the Hunters were not uninsured motorists. Their policy benefits were exhausted before plaintiff could recoup any coverage for her injuries. To deny recovery at this stage would result in a situation where a plaintiff would be in a better position if injured by a tortfeasor with absolutely no insurance, rather than by one with exhausted benefits. Since uninsured motorist coverage is intended "for the protection of persons insured”, the legislative intent would hardly be served by such an interpretation.

Though Michigan law is scarce in this area, this conclusion is supported by decisions from other jurisdictions. Language from the Ohio case of Hanlon v Buckeye Union Ins Co, 73 Ohio Op 2d 267, 271; 324 NE2d 598 (1975), is particularly illuminating:

"It is elementary that uninsured means uninsured insofar as a particular injured person is entitled to recovery thereon; i.e. it is not possible for him to recover any liability insurance monies.
"It would be ridiculous to hold that although a tortfeasor may be a party to a writing — an automobile liability coverage policy — but the company denies recovery thereon so far as a victim is concerned, that an uninsured policy holder could neither collect, on the coverage for which he paid or collect on the liability coverage of the tortfeasor.
"The only logical and reasonable construction that may be given the policies and the statute is one construing them to mean that if the offending driver does not have liability coverage available to the injured insured in limits for bodily injury set forth in R.C. § 4509.20, that the uninsured motorist coverage is applicable to such insured up to the limits stipulated in his policy.” (Emphasis in original.)

See also Porter v Empire Fire & Marine Ins Co, 106 Ariz 274, 279; 475 P2d 258 (1970).

This conclusion also finds support in a series of Michigan decisions which have enunciated a state policy in favor of stacking insurance benefits. See Blakeslee v Farm Bureau Mutual Ins Co of Mich, 388 Mich 464; 201 NW2d 786 (1972), Aetna Casualty & Surety Co v Belcher, 83 Mich App 175; 268 NW2d 335 (1978), Santillanes v Banks, 86 Mich App 615; 273 NW2d 83 (1977), and Allstate Ins Co v Anderson, 87 Mich App 539; 274 NW2d 66 (1978).

In view of the foregoing, I would suggest that the arbitrators’ decision was arbitrary and constituted a clear error of law. Therefore, it was outside the scope of the arbitrators’ powers to come to this conclusion and this Court may grant relief. See Detroit Automobile Inter-Insurance Exchange v Spafford, 76 Mich App 85, 87; 255 NW2d 780 (1977), and GCR 1963, 769.9.

Accordingly, this cause should be remanded to the circuit court. There, the court should determine what percentage, if any, of the Hunters’ insurance coverage, which was paid on plaintiffs mother’s derivative claim, went to the plaintiff. If none, plaintiff shall be awarded $20,000, to be made up of $10,000 from the uninsured motorist provision of her own policy and $10,000 from her mother’s policy. If plaintiff was assigned a percentage of her mother’s derivative recovery, the circuit court shall award plaintiff $20,000 less this percentage. This award shall also come from plaintiffs uninsured motorist provision to the extent of $10,000, with the balance made up by plaintiffs mother’s uninsured motorist coverage. Upon remand, this Court should no longer retain jurisdiction.

       Since we do not believe that the arbitrators exceeded their authority in denying plaintiff recovery, we do not reach the merits of this case as does the dissent. Were we to examine this case de novo, we would likely adopt the majority view, as opposed to the minority view advocated by the dissent, which is that an insufficiently insured motorist may not recover from uninsured motorists’ funds. See Saari v State Farm Mutual Automobile Ins Co, 72 Mich App 278; 249 NW2d 390 (1976), Gorton v Reliance Ins Co, 77 NJ 563; 391 A2d 1219 (1978), Brake v MFA Mutual Ins Co, 525 SW2d 109 (Mo App, 1975),
        Travelers Ins Co v Bouzer, 39 Cal App 3d 992; 114 Cal Rptr 651 (1974), Simonette v Great American Ins Co, 165 Conn 466; 338 A2d 453 (1973).


author: V. J. Brennan, J.

text:
    PEOPLE v GIBSON
    Docket No. 78-4055.
    Submitted September 4, 1979, at Detroit.
    Decided December 5, 1979.
    Leonardo Gibson was convicted of armed robbery and possession of a firearm in the commission of a felony, Wayne Circuit Court, Harold Hood, J. Defendant appeals, alleging that 1) the felony-firearm statute is unconstitutional, 2) one not in actual possession of a firearm cannot be convicted under the felony-firearm statute, 3) the prosecution was required to prove that the gun used by defendant’s accomplice was operable, 4) defendant was denied effective assistance of counsel because defense counsel failed to present as witnesses attorneys who had attended various pre-trial lineups and photographic showups, and 5) the evidence regarding defendant’s identification as one of the robbers was insufficient to support his conviction. Held:

    1. The felony-firearm statute is constitutional. It violates neither the prohibition against double jeopardy nor the Michigan Constitution’s prohibition against amending a statute by implication.
    2. A person may be convicted as an aider and abettor of one who actually possesses a firearm in the commission of a felony.
    3. There is no requirement that the prosecution show proof that a firearm used in a robbery was in operating condition, under either the armed robbery statute or the felony-firearm statute.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 546.
    73 Am Jur 2d, Statutes § 140.

       21 Am Jur 2d, Criminal Law § 119.

       67 Am Jur 2d, Robbery §§ 4-6, 23.
    Fact that gun was unloaded as affecting criminal responsibility. 79 ALR2d 1412.
    Robbery by means of toy or simulated gun or pistol. 81 ALR3d 1006.

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

       79 Am Jur 2d, Weapons and Firearms § 16.

       7 Am Jur 2d, Attorneys at Law §§ 168, 171.
    21 Am Jur 2d, Criminal Law § 315.

       30 Am Jur 2d, Evidence §§ 1080, 1170.

      4. Defense counsel’s decision not to present certain witnesses is trial strategy and, as such, will not support a claim of ineffective assistance of counsel.
    5. There was evidence presented which would support the identification of the defendant as one of the perpetrators of the robbery. It is for the jury, not the court, to weigh the evidence presented.
    Affirmed.
    1. Criminal Law — Felony Firearm — Double Jeopardy — Amendment of Statutes.
    The felony-firearm statute, which provides that possession of a firearm during the commission of a felony is an offense which mandates a two-year prison sentence in addition to that imposed for the felony itself, does not violate the prohibition against double jeopardy nor does it impermissibly amend any other statute by implication (MCL 750.227b; MSA 28.424[2]).
    2. Criminal Law — Felony Firearm — Aiders and Abettors.
    A person who is not in actual possession of a firearm during the commission of a felony may be found guilty as an aider and abettor of one who does possess a firearm.
    3. Robbery — Armed Robbery — Operability of Firearm.
    It is not required, in order to show a violation of the armed robbery statute, to prove that a gun used in a robbery is operable; the victim’s reasonable belief that the defendant is armed is sufficient to sustain the conviction.
    4. Statutes — Construction op Statutes — Purpose and Intent of Legislature.
    The primary and fundamental rule of statutory construction is to ascertain and give effect to the purpose and intention of the Legislature; the words of a statute are to be applied to the subject matter and to the general scope of its provision and are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied.
    5. Criminal Law — Felony Firearm — Operability op Firearm.
    A prosecutor need not present proof of operability of a firearm in a prosecution for a felony-firearm violation (MCL 750.227b; MSA 28.424[2]).

      6. Criminal Law — Attorney and Client — Effective Assistance of Counsel — Trial Strategy.
    A defense attorney’s decision not to present specific witnesses at trial relates to trial strategy and, as such, will not support a claim of ineffective assistance of counsel.
    7. Criminal Law — Evidence — Sufficiency of Evidence.
    The evidence must be viewed in the light most favorable to the prosecution where a defendant has alleged that the evidence was insufficient to support his conviction; the conviction may be supported if the prosecutor introduced some competent evidence as to each essential element of the crime charged, and it is for the jury, not the court, to weigh the evidence.

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

      Robert A. Rosenberg, for defendant on appeal.
    Before: Bashara, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   V. J. Brennan, J.

Defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant moved for a new trial at sentencing on May 17, 1978. That motion was denied. Defendant was sentenced at that time to a prison term of 8 to 20 years on the armed robbery count and to the mandatory 2 years on the felony-firearm count. Defendant appeals by right.

Defendant’s conviction arose out of the robbery of the Polka Dot Party Store in Wyandotte, Michigan, by two men. Defendant was identified at trial as being the robber without a gun.

Defendant argues that the felony-firearm statute is unconstitutional under the double jeopardy prohibition and under Michigan Const 1963, art 4, § 25, which prohibits amendment of statutes by implication.

These constitutional arguments were recently settled by the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 391; 280 NW2d 793 (1979). The statute was found to be constitutional.

Defendant further argues that one not in actual possession of a firearm cannot be convicted under the felony-firearm statute of aiding and abetting a person in actual possession of a firearm who violates the felony-firearm statute. This Court has been divided on this issue. Cf., People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Perry, 92 Mich App 732; 285 NW2d 217 (1979).

"It is our opinion that the proper application of the aiding and abetting statute, MCL 767.39; MSA 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.
"The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.
"The aider and abettor statute provides that:
" 'Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.’
"There is no language in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979). Further, the aider and abettor statute has been previously applied to possessory crimes. People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971).” People v Wimbush, 94 Mich App 152; 288 NW2d 375 (1979).

Angelo Sandusky, defendant’s purported partner in the robbery, mentioned at trial that the gun used to perpetrate the armed robbery was not operable. Defendant did not pursue or challenge this evidence at trial. At the time of sentencing defendant moved for a new trial on the grounds that the prosecution had failed to prove, as an element of its case, that the firearm was operable. The motion was denied and defendant claims error.

Initially it should be noted that the armed robbery statute does not require proof that a gun is operable. It is the victim’s reasonable belief that the defendant is armed that is sufficient to sustain the conviction. Whether the gun was operable or not, therefore, would not affect this defendant’s armed robbery conviction.

The felony-firearm statute, MCL 750.227b; MSA 28.424(2), provides:

"Sec. 227b. (1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.”

The definition of a firearm is contained in MCL 8.3t; MSA 2.212(20):

"Sec. 3t. The word 'firearm’, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceeding .177 calibre by means of spring, gas or air.”

The primary and fundamental rule of statutory construction is to ascertain and give effect to the purpose and intention of the Legislature. Intent must be inferred from the language used, but it is not the meaning of the particular words in the abstract only or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). See also People v Gilbert, 88 Mich App 764, 768; 279 NW2d 546 (1979).

The Supreme Court has found that the legislative purpose behind the felony-firearm statute is to deter the use of firearms due to their inherent dangerousness. Wayne County Prosecutor, supra. Therefore, the felony-firearm statute requires a construction in harmony with that finding, MCL 8.3; MSA 2.212.

It is our opinion that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. A contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur.

Defendant also alleges that he was denied effective assistance of counsel because defense counsel failed to subpoena and present testimony of attorneys present at the various pre-trial lineups and photo showups. Defendant does not not argue that the lineups were unfair.

Testimony concerning the various witnesses’ ability or inability to identify the defendant was presented at trial. Defendant does not now specify what testimony the attorneys could have presented. The decision not to present specific witnesses reláteselo trial strategy and as such will not support a claim of ineffective assistance of counsel. People v Roberson, 90 Mich App 196, 204; 282 NW2d 280 (1979).

Defendant also challenges the sufficiency of the evidence regarding his identification as one of the robbers because a witness to the robbery who had identified the defendant at trial had previously identified another person as being the robber instead of defendant. However, the record reflects that Angelo Sandusky, who had been convicted of the robbery in question on the day prior to defendant’s trial, testified that defendant had been his accomplice.

In reviewing a claim of insufficient evidence the evidence must be viewed in the light most favorable to the prosecutor. People v McCracken, 88 Mich App 286, 294; 276 NW2d 609 (1979). In a criminal prosecution, all that is required to support a conviction is that the prosecutor introduce some competent direct or circumstantial evidence as to each essential element of the crime charged so as to support the jury’s finding of guilt beyond a reasonable doubt. It is for the jury, not the court, to weigh the evidence. People v Clark, 88 Mich App 88, 90-91; 276 NW2d 527 (1979).

Affirmed.


text:
    PEOPLE v BUFF CORPORATION (CITY OF WARREN v BUFF CORPORATION)
    Docket No. 78-327.
    Submitted December 11, 1978, at Lansing.
    Decided December 6, 1979.
    Buff Corporation owns and operates a class "C” liquor licensed establishment which contains seven pinball machines. Application for a license to operate the machines under the City of Warren Code or ordinance was filed with the city clerk. The city clerk refused to issue the license because Buff Corporation failed to comply with various sections of the Warren Code or ordinance dealing with amusement and vending machines. Buff challenged the constitutionality of these sections of the code. The district court held that certain sections of the code which govern the issuance of an "arcade” license conflict with the Michigan Liquor Control Act and are therefore void and unenforceable and that § 3-503(6)(e) which gives the city clerk authority to disprove an application if the applicant operates an arcade hall in a manner generally reputed in the immediate vicinity to be immoral and a menace to the good citizenship of the community as evidenced by petitions of the affected community is invalid because it attempts to vest the city clerk with arbitrary power to disapprove a license application. Macomb Circuit Court, Edward J. Gallagher, J., affirmed the trial court’s opinion concerning the conflict with the Michigan Liquor Control Act and held further that § 3-503(6)(e) was void for vagueness. Plaintiff appeals. Held:

    1. A statute provides that the Michigan liquor control commission shall not prohibit liquor licensees from allowing pinball machines on the premises for the purpose of amusement. A city cannot defeat this legislative intention by arbitrarily enacting ordinances which have the operational consequences of prohibiting pinball machines on the premises for purposes of amusement. A city may enact legislation designed to complement or supplement the statute by providing .for licensing and registration of pinball machines, but it cannot under the guise of licensing arbitrarily prohibit the placing of these machines in liquor establishments.

      References for Points in Headnotes

       56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions §§ 374, 375.

       56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions § 367.
    16A Am Jur 2d, Constitutional Law § 818.

      2. Section 3-503(6)(e) fails to meet the requirements of due process. The nebulous terminology "immoral and a menace to the good citizenship of the community” is vague and standard-less leaving the public uncertain as to the conduct prohibited, or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. In the absence of due process safeguards a city clerk has unfettered discretion in the approval or disapproval of pinball license applications. The ordinance provision does not set forth a standard of conduct which is reviewable. It is invalid.
    Affirmed.
    1. Municipal Corporations — Ordinances — Liquor Licenses — Pinball Machines — Arbitrary Prohibition — Statutes.
    A statute provides that the Michigan liquor control commission shall not prohibit liquor licensees from allowing pinball machines on the premises for the purpose of amusement; therefore a city cannot defeat this legislative intention by arbitrarily enacting ordinances which have the operational consequences of prohibiting pinball machines on the premises for purposes of amusement; a city may enact legislation designed to complement or supplement the statute by providing for licensing and registration of pinball machines, but it cannot under the guise of licensing arbitrarily prohibit the placing of these machines in liquor establishments (MCL 436.28a; MSA 18.999[1]).
    2. Constitutional Law — Statutes — Vague and Standardless — Due Process Clause.
    A law fails to meet the requirements of the due process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct that it prohibits, or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.

      W. Thomas Marrocco, Jr., Warren City Attorney, and Walter A. Jakubowski, Jr., Assistant City Attorney, for plaintiff.

      Perica, Breithart, Gallagher, Viviano, Graham, Nitz & Carmody, P.C., for defendant.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   V. J. Brennan, J.

Defendant owns and operates a class "C” liquor licensed establishment known as the Electric Saloon which contains, among other amusement devices, seven pinball machines. Defendant applied to the city clerk for a license to operate the devices, as required under the terms of the Warren Code or ordinance. The city clerk disallowed issuance because defendant fialed to comply with § 3-502 which requires those who maintain or distribute mechanical games for purposes of operation to secure an "arcade license”. Subsequently, defendant was cited under a three-count criminal complaint for violation of §§ 3-502(2), failure to obtain an establishment license, 3-502(l)(a), failure to display said license, and 3-505(6), operating the establishment without a bonded security guard. According to the stipulated facts, defendant moved to set aside various sections of the Warren Code dealing with amusement and vending machines as being unconstitutional. The trial court held that § 3-503(7)(8)(9), § 3-504 and § 3-505(6), which govern the issuance of an arcade license, conflict with § 28a of the Michigan Liquor Control Act, MCL 436.28(a); MSA 18.999(1), and are therefore void and unenforceable. The trial court also held that § 3-503(6)(e) is invalid because it attempts to vest the city clerk with arbitrary power to disapprove a license application. The circuit court for the County of Macomb incorporated the trial court’s opinion concerning the conflict with § 28a and affirmed the result therein. The circuit court also held that § 3-503(6)(e) was void for vagueness.

Plaintiff appeals by leave granted.

We first address the question of conflict between the city ordinance and the Michigan Liquor Control Act. Section4i of the Home Rule Cities Act, MCL 117.4Í; MSA 5.2082, sets forth in pertinent part that each city may in its charter provide:

"For the regulation of trades, occupations and amusements within its boundaries, not inconsistent with state and federal laws, and for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants.”

The City of Warren conferred the regulatory powers prusuant to this statute on its city council. The council enacted the subject ordinance to regulate mechanical games. The ordinance defines "arcade hall” as an establishment with five or more mechanical games (pinball machines are included in the definition of mechanical games). Section 3-502(1) provides that it is unlawful for an owner to allow the maintenance, for the purpose of operation, of any mechanical game without first procuring a license for the device. Section 3-502(l)(a) imposes a duty upon the owner to post the mechanical game license near the machine. Section 3-502(2) provides that it is unlawful for an owner to maintain any mechanical game without first obtaining a license for the establishment where the device is being maintained. Section 3-503(6)(e) provides that the city clerk has authority to disapprove an application for a license if the applicant operates an arcade hall "in a manner generally reputed in the immediate vicinity to be immoral and a menace to the good citizenship of the community, as evidenced by petitions of the affected community”. Section 3-503(7) provides that if an application for a license is disapproved, an owner may not reapply for nine months. Section 3-503(8) provides that the city clerk shall require a licensee to furnish proof of liability insurance in an amount not less than $500,000 for bodily injury to or the death of a patron of the arcade hall. Section 3-503(a) provides for the acquisition of a continuous surety bond in an amount of not less than $5,000 to assure full compliance with the ordinance. Section 3-504 requires an owner to pay a license fee of $30 plus $8 for each mechanical game. Section 3-505(6) provides that it is unlawful for an arcade owner to operate without having a bonded security guard on the premises between 8 p.m. and 2 a.m.

As noted above, the district court adjudged §§ 3-503(7), (8), (9), 3-504, 3-505(6) to be void and unenforceable in that they defeat the legislative intent expressed by the state Legislature in § 28a of the Michigan Liquor Control Act.

Const 1963, art 4, § 40 provides:

"The legislature may by law establish a liquor control commission which, subject to statutory limitations, shall exercise complete control of the alcoholic beverage traffic within this state, including the retail sales thereof. The legislature may provide for an excise tax on such sales. Neither the legislature nor the commission may authorize the manufacture or sale of alcoholic beverages in any county in which a majority of the electors voting thereon shall prohibit the same.”

MCL 436.1; MSA 18.971 provides in pertinent part:

"Except as by this act otherwise provided, the commission shall have the sole right, power and duty to control the alcoholic beverage traffic and traffic in other alcoholic liquor within the state of Michigan, including the manufacture, importation, possession, transportation and sale thereof.”

MCL 436.28a; MSA 18.999(1) provides:

"The commission shall not prohibit licensees from allowing pinball machines on the premises for the purpose of amusement.”

The trial court ruled that since the commission has complete control over the alcoholic beverage traffic in the state, and since the commission cannot prohibit pinball machines from licensees’ premises, the city cannot arbitrarily enact ordinances which have the "operational consequences” of prohibiting liquor licensees from "allowing pinball machines on the premises for purposes of amusement”. The trial court ruled that the city may enact legislation designed to complement or supplement § 28a i.e., provide for licensing and registration of pinball machines, but the city cannot under the guise of licensing arbitrarily prohibit the placing of these machines in liquor establishments.

The trial court then found as a matter of fact that the ordinance sections set forth above comprise an arbitrary economic prohibition to the placing of pinball machines. In the words of the trial court:

"Even if this Court were to assume the existence of insurance companies willing to underwrite the required $500,000 liability policy, it would require little insight into the harsh realities of the economic world of the pinball machine enterprise to arrive at the conclusion that the cost for such a policy, in conjunction with costs for a licensed security guard and a $5,000 surety bond, dwarf even the most optimistic expectations of monetary yield from 'five or more mechanical games * * *’. Although the break-even point might be reached by installation of the 10 amusement devices employed by Defendant, the prohibitive impact of § 3-503(8), (9), 3-505(6), is not thereby lessened. Indeed, one need not engage in the esoteric activity of inquiring into the motives of the City Council in adopting the relevant provisions, People v Gardner, 143 Mich 104 (1906), to arrive at the reasonable inference that they were precisely intended to accomplish this purpose. This inference is strengthened by virtue of comparing § 3-504 with § 3-125(12), the former imposing fees eight times as high as the latter for the identical subject matter — such fees do not appear reasonably related to associated expenses incurred by the City, See, Wells v Torrey, 144 Mich 689 (1906) but rather are prohibitive in character. And the inference becomes even more strengthened when § 3-503(7), requiring a 9-month delay in reapplying for an establishment license subsequent to an initial rejection, is added.”

The city devotes much of its brief on appeal to the propriety of the trial court’s ruling that § 28a operates to prohibit the city from "invasion” of the field. Although the trial court did make such a statement, the type of invasion contemplated is defined as an arbitrary prohibition. A ruling that § 28a preempts the field would have been erroneous pursuant to the standards for preemption set forth in People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977).

The trial court did not base its decision on preemption but rather on the economic prohibition fostered by the ordinance. We agree.

We next address the trial court’s ruling that § 3-503(6)(e) is void for vagueness. As set forth above the section gives the city clerk the authority to disapprove the license application if the arcade hall is operated "in a manner generally reputed in the immediate vicinity to be immoral and a menace to the good citizenship of the community, as evidenced by petitions of the affected community”. In Giaccio v Pennsylvania, 382 US 399; 86 S Ct 518; 15 L Ed 2d 447 (1966), it was held that a law fails to meet the requirements of the due process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct that it prohibits, or leaves the judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. The use of the nebulous terminology "immoral and a menace to the good citizenship of the community” falls within the Giaccio prohibition and places unfettered discretion in the hands of the city clerk. Papachristou v City of Jacksonville, 405 US 156, 162; 92 S Ct 839; 31 L Ed 2d 110 (1972). Here the ordinance provision in question does not set forth a standard of conduct which is reviewable. While we recognize the interest the city is attempting to protect, that end can be more narrowly protected by specifically delineating the conduct proscribed. We do not find the lower court’s ruling in this regard improper.

Affirmed.


text:
    STONEMAN v COLLIER
    Docket No. 78-3603.
    Submitted October 9, 1979, at Detroit.
    Decided December 6, 1979.
    On October 16, 1973, Donna S. Ollie died from carbon monoxide asphyxia while a passenger in a 1965 Pontiac automobile owned and operated by Robert M. Collier, since deceased. Martin Stoneman, as administrator of the estate of Donna S. Ollie, brought an action against the automobile no-fault insurance carrier of Robert M. Collier. During the course of the action, the attorney for the estate of Robert M. Collier refused to turn over to Stoneman certain information pertaining to the insurance company’s investigation claiming that the documents were the work product of the insurance company. Subsequently, Stoneman and decedent Ollie’s next of kin brought a wrongful death action in Oakland Circuit Court against Collier’s estate and seven other defendants. The plaintiffs attempted to add General Motors Corporation as a defendant to the wrongful death action by filing an amended complaint alleging that Ollie’s death was caused by General Motors’ breach of implied warranty and negligence in certain designs that allowed carbon monoxide intrusion and claiming that the fraudulent concealment act operated to toll the running of the statute of limitation and, in the alternative, that the limitation period did not begin to run until the discovery of the existence of a possible cause of action rather than upon the time of death. Initially the circuit court ruled that the limitations period was not extended by operation of the fraudulent concealment act, but that the limitations period did not begin to operate until discovery of a possible cause of action against General Motors. On rehearing, the circuit court ruled that the "discovery rule” was not applicable to products liability cases resulting in wrongful death and granted accelerated judgment in favor of General Motors, Stephen N. Andrews, J. Plaintiffs appeal. Held:

      References for Points in Headnotes

       51 Am Jur 2d, Limitation of Actions § 146 et seq.

    Effect of fraud to toll the period for bringing action prescribed in statute creating right of action. 15 ALR2d 500.
    Fraud misrepresentation, or deception as estopping reliance on statute of limitations. 43 ALR3d 429.

       51 Am Jur 2d, Limitation of Actions § 107.

      1. The fraudulent concealment act does not operate against persons who do not participate in the concealment. The concealment of information by the attorney for the Collier estate did not extend the statute of limitations as to General Motors, who did not participate in the concealment.
    2. Plaintiffs were aware from the outset that Donna S. Ollie died of carbon monoxide poisoning while in a General Motors automobile. An action against General Motors could have proceeded accordingly. The fact that plaintiffs did not realize that a cause of action existed against General Motors until after the statute of limitations for the action had run did not operate to extend the limitations period.
    Affirmed.
    1. Limitation of Actions — Fraudulent Concealment Act — Statutes.
    The fraudulent concealment act extends the statute of limitations against those who fraudulently conceal causes of action; however, the fraudulent concealment act does not operate against persons who do not participate in the concealment (MCL 600.5855; MSA 27A.5855).
    2. Negligence — Accrual of Cause of Action — Limitation of Actions.
    A cause of action sounding in negligence accrues on the date of the injury and is not held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action; it is not necessary that a party should know the details of the evidence by which to establish his cause of action, it is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim within the period of limitations.

      Raymond, Rupp & Weinburg, P.C. (by David S. Keast), and Sandor M. Gelman, for plaintiffs.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by J. Thomas Lenga and Joseph C. Basta) (Otis M. Smith, General Counsel, by Patricia Harris, of counsel), for defendant General Motors Corporation.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   V. J. Brennan, J.

Plaintiffs appeal of right from an amended order granting accelerated judgment in favor of defendant General Motors Corporation, entered on July 5, 1978, by Oakland County Circuit Judge Stephen N. Andrews, acting for and on behalf of Oakland County Circuit Judge William J. Beer. The amended order expressly stated that it was entered as a final judgment of the matters involving General Motors Corporation and that there was no just reason for delay, thereby complying with GCR 1963, 518.2 and enabling plaintiffs to take an immediate appeal.

On October 19, 1973, Donna Sue Ollie died from carbon monoxide asphyxia while a passenger in a 1965 Pontiac automobile owned and operated by the late Robert M. Collier, and manufactured by General Motors. On or about April 2, 1975, Martin Stoneman was appointed administrator of the estate of the deceased Ollie and shortly thereafter commenced an action in Oakland County Circuit Court against the automobile no-fault insurance carrier of Robert M. Collier. At this time the attorney for the estate of Robert M. Collier was cooperating with plaintiffs in the investigation of the death.

Plaintiffs allege that the attorney had access to certain insurance company investigations on the cause of death as well as photographs of the automobile (the automobile was disposed of prior to Stoneman’s appointment as administrator) and that Stoneman requested that the attorney turn over the information, but he refused claiming that the documents were the work product of the insurance company.

Plaintiffs allege that the only claim that they were aware of was against the company that installed the muffler and exhaust system shortly prior to decedent Ollie’s death.

Plaintiffs claim here that the attorney for Collier’s estate fraudulently concealed information that would disclose the liability of General Motors in a products liability suit. This information was not turned over to plaintiffs until after the three-year statute of limitations had run.

Plaintiffs attempted to add General Motors as a party defendant in the wrongful death action filed against Collier’s estate and seven other defendants, citing the fraudulent concealment act, MCL 600.5855; MSA 27A.5855. In the alternative, plaintiffs claimed that the statute did not begin to run until discovery of the existence of a possible cause of action (the discovery rule) rather than upon the time of death. On September 12, 1977, plaintiffs filed their first amended complaint alleging that decedent Ollie’s death was caused by General Motors’ breach of implied warranty and negligence in certain designs that allowed carbon monoxide intrusion.

The lower court originally ruled that the statute of limitations was not extended by operation of MCL 600.5855 but that the statute did not begin to run until discovery of the existence of a possible cause of action against General Motors. On rehearing, the lower court reversed its position and ruled that the "discovery rule” was not applicable to products liability cases resulting in wrongful death. The lower court relied on Szlinis v Moulded Fiber Glass Companies, Inc, 80 Mich App 55; 263 NW2d 282 (1977) lv granted 402 Mich 925 (1978).

The question raised on appeal is whether the actions of concealment by a third party operate to extend the statute of limitations against a party who has not participated in any concealment.

This precise issue was discussed in International Union United Automobile Workers of America, AFL v Wood, 337 Mich 8, 14; 59 NW2d 60 (1953), where the Supreme Court stated: "concealment by one other than the one sought to be charged is not within the prohibition of the statute. See Stevenson v Robinson, 39 Mich 160.”

The plaintiffs, aware of Wood, argue that the statute was amended since that case to operate where third parties engage in the concealment. The statute in 1953 read as follows:

"If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 2 years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter.” 1915 PA 314, ch 9, § 20.

In 1954 the statute was amended to read as follows:

"If any person, who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action, or conceal the identity of any party thereto, from the knowledge of the person entitled thereto, the action may be commenced at any time within 2 years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter.” 1954 PA 49.

As can be readily ascertained the 1954 amendment added the concealment of the identity of a party to the action as a ground for tolling the statute. See Vega v Briggs Manufacturing Co, 341 Mich 218, 222; 67 NW2d 81 (1954).

There is no showing that the amendment in any way changed the previously established rule that concealment by one other than the one sought to be charged is not within the prohibition of the statute.

The purpose of the statute of limitations is to prevent the bringing of stale claims which are difficult to prove and defend against. The fraudulent concealment act extends the statute of limitations against those who fraudulently conceal causes of action. The fraudulent concealment act punishes concealment. It would be inequitable in the present case to punish General Motors for acts of concealment engaged in by a third party.

The lower court properly ruled that the fraudulent concealment act does not operate against persons who do not participate in the concealment.

Plaintiffs next argue that the wrongful death action did not accrue until the possibility of General Motors’ liability was discovered. We disagree.

In Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), the Court held that the statute of limitations for medical malpractice did not begin to run until the plaintiff discovered or should have discovered the existence of the claim. However, medical malpractice claims present special problems since it is sometimes difficult to distinguish the injury from symptoms of the condition for which treatment was sought.

Here the factors which may obstruct a patient’s awareness of a malpractice claim are not present. From the outset plaintiffs were aware that decedent Ollie died of carbon monoxide poisoning in a General Motors automobile, and could have proceeded against General Motors accordingly.

As set forth in Sedlak v Ford Motor Co, 64 Mich App 61, 63; 235 NW2d 63 (1975):

"It would be an extremely dangerous rule of law that the accrual date of a cause of action is held in abeyance indefinitely until a prospective plaintiff obtains professional assistance to determine the existence of a possible cause of action. Under such a theory, no limitations period would ever be binding.
"The Supreme Court summed this all up as follows:
" 'It is not necessary that a party should know the details of the evidence by which to establish his cause of action. It is enough that he knows that a cause of action exists in his favor, and when he has this knowledge, it is his own fault if he does not avail himself of those means which the law provides for prosecuting or preserving his claim.’ Kroll v Vanden Berg, 336 Mich 306, 311; 57 NW2d 897 (1953).”

Affirmed. Costs to be paid by plaintiffs-appellants.


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

text:
    ADRIAN MOBILE HOME PARK v CITY OF ADRIAN
    Docket No. 78-3799.
    Submitted October 10, 1979, at Lansing.
    Decided December 6, 1979.
    Adrian Mobile Home Park, doing business as Sterling Mobile Home Community, brought an action against the City of Adrian and the city Building Division, and H. W. Bond, the chief building inspector, seeking to have a section of the park’s special use permit declared void and to enjoin enforcement of that section. The special use permit had been issued by the city to the plaintiffs predecessor in interest. The section in question prohibited occupancy in the mobile home park by anyone under the age of 50. The Lenawee Circuit Court, Kenneth B. Glaser, Jr., J., found that the section was unconstitutional in so far as it excluded residency by one under age 50 whose spouse was age 50 or more. The trial court held that the section should be construed so as to allow residency by married couples where only one of the spouses is age 50 or more. Plaintiff appeals. Held:

    The section as written is clear and unambiguous in its exclusion of all persons under age 50, and is therefore not subject to judicial construction or interpretation. The trial court was correct in holding the section to be unconstitutional as applied to married couples where one spouse is age 50 or more and the other is not, but the trial court erred by interpreting the section. The proper remedy is severance of the offending provision where severance can be accomplished without negating the remaining provisions of the use permit.
    Reversed and remanded for entry of a declaratory judgment that the section is void and for issuance of an injunction against its enforcement.
    References for Points in Headnotes

       16 Am Jur 2d, Constitutional Law § 212.
    56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions §§ 381, 382.

       56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions § 398.

       16 Am Jur 2d, Constitutional Law §§ 219, 260 et seq.

    56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions § 400.

      1. Municipal Corporations — Ordinances — Presumption of Constitutionality.
    An ordinance is presumed to be constitutional and a party attacking the constitutionality of an ordinance has the burden of proving that it bears no substantial relationship to the public welfare.
    2. Municipal Corporations — Ordinances — Construction of Ordinances.
    An ordinance must be effectuated as written when it is clear and unambiguous; it is subject to judicial construction or interpretation only when it is unclear and susceptible to differing interpretations.
    3. Municipal Corporations — Ordinances — Construction of Ordinances — Severance.
    An ordinance must be construed in such a way as to render it valid, not invalid, whenever it is possible to do so, and where a court strikes down parts of an ordinance it must declare the entire ordinance to be of no effect unless the invalid sections can be severed and still leave the remainder of the ordinance complete and operative, in which case severance is required.

      McLellan, Schlaybaugh & Whitbeck (by Rex E. Schlaybaugh, Jr., and Stephen D. Winter), for plaintiff.

      Baker, Durst, Marr & Nelson, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and P. J. Glennie, JJ.

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

   D. E. Holbrook, Jr., J.

Defendant City of Adrian issued to plaintiffs predecessor in interest a special use permit to authorize construction and operation of a mobile home park. Plaintiff initiated suit seeking a declaration that § 27 of the special use permit was void and an injunction permanently to restrain enforcement of said section. The lower court denied the requested relief, but did modify the section, and plaintiff appeals as of right.

Initially, we note that this matter deals not with a zoning ordinance, but rather with a special use permit issued in accordance with the ordinance. Despite any technical similarities between the two, we apply principles of statutory construction to the special use permit as if it were strictly an ordinance. Section 27 states:

"No person under the age of 50 years shall be permitted to occupy any mobile home in this park as a resident. No children shall be permitted in the park except on visitation for a period of no more than one month in any calendar year.”

Generally speaking a presumption of constitutionality favors the validity of an ordinance. Plaintiff has the burden of proving that the use permit bears no substantial relationship to the public welfare. If such relationship is debatable then the legislative judgment must be accepted. Grocers Dairy Co v Dep’t of Agriculture Director, 377 Mich 71; 138 NW2d 767 (1966). Furthermore, an ordinance must be effectuated as written when it is clear and unambiguous. It is subject to judicial construction or interpretation only when it is unclear and susceptible of different meanings. If the court finds an ordinance or portions thereof to be unconstitutional it has the power to strike it down or sever the invalid portions. It does not have the power to redraft a statute; that is the province of the Legislature.

Plaintiff contends: that § 27 is an arbitrary, unreasonable and capricious exercise of the zoning power; that in attempting to regulate which family members may live together, it constitutes a substantial intrusion into fundamental rights of individuals to privacy, marriage and procreation; that the impact of this invasion is not outweighed by any asserted, compelling state interest and, accordingly, §27 must be determined to be unconstitutional as offensive to constitutional guarantees of due process; and that the trial court erred by modifying rather than severing the provision.

The city contends that there was not a significant interference with constitutional rights and that the 50-plus provision bears a rational relationship to the legitimate government interest of providing housing for senior citizens. In addition the city argues that the court intended the objected-to portion of § 27 to be severed, not redrafted.

If possible, an ordinance must be construed in such a way as to render it valid, not invalid. Where a court strikes down parts of an ordinance, it must declare the entire ordinance to be of no effect unless the invalid section can be severed from the rest of the ordinance and still leave it complete and operative. Orion Twp v Weber, 83 Mich App 712, 718-719; 269 NW2d 275 (1978). The trial judge acknowledged that one of the basic questions of law involved related to the validity of the remainder of the special use permit should § 27 be declared invalid. In the body of his opinion he stated that the age 50 provision of § 27 of the special use permit was reasonably related to the government’s interest in the public welfare except as to requiring both spouses to be 50 years of age.

In its opinion the lower court held:

"Section 27 of the Supplemental Use Permit for Sterling Mobile Home Park is unconstitutional in part as being an unreasonable exercise , of the zoning power, if interpreted to exclude persons as residents where one spouse is 50 years of age or more, but the other is not. Accordingly Section 27 is to be interpreted as permitting married couples to be residents, if either or both spouses is 50 years of age or more, and Section 27 is to be so administered and is modified accordingly.”

We are in agreement with the lower court that the language of § 27 as written is unconstitutional in part by excluding residents where one spouse is 50 years of age or more but the other is not. Nevertheless, judicial construction of a statute or ordinance is inappropriate where the language of the statute is unambiguous. Oakland County Prosecutor v 46th District Judge, 76 Mich App 318; 256 NW2d 776 (1977). As the Supreme Court stated in The Raven, Inc v City of Southñeld, 399 Mich 853 (1977), adopting the dissenting opinion of Chief Judge Danhof at 69 Mich App 696, 702; 245 NW2d 370 (1976):

"It is axiomatic in the law that where statutory language is plain, certain and unambiguous, such language is not subject to construction by the courts.”

The trial judge emphasized that he intended to sever the age 50 provision rather than interpret it; however, the language used in his opinion indicates a construction rather than a severance. The expressed language of § 27 states that "no person” under the age of 50 shall be permitted to reside in plaintiffs mobile home park. The provision is clear, certain and unambiguous and is therefore not a proper subject for judicial construction.

The various provisions of § 27 of the special use permit are of such a nature that the effective operation and validity of the remainder of the permit would not be negated if the § 27 provisions are stricken, therefore severance is not only permissible but required. Eastwood Park Amusement Co v Mayor of East Detroit, 325 Mich 60; 38 NW2d 77 (1949). The approach taken by the lower court was an interpretation of a restriction that was clear, unambiguous and not capable of interpretation.

We reverse the lower court’s judgment and remand the case for entry of a declaratory judgment that § 27 of the special use permit is void and for issuance of a permanent injunction restraining its enforcement.

The award of costs to defendants in the lower court is set aside, each party to bear their own costs, a public question being involved.


author: Bashara, P.J.

text:
    LANSING SCHOOL DISTRICT v MICHIGAN EMPLOYMENT RELATIONS COMMISSION
    Docket No. 78-4194.
    Submitted June 20, 1979, at Detroit.
    Decided December 6, 1979.
    Michigan Council 11, American Federation of State, County and Municipal Employees, AFL-CIO, filed a petition with the Michigan Employment Relations Commission which sought to have the custodial-maintenance-supply employees and the cafeteria employees employed by the Lansing School District merged into a single bargaining unit. While both the custodial-maintenance-supply employees and the cafeteria employees were represented by the union, they were in two separate bargaining units. The Employment Relations Commission, relying primarily upon the Commission’s prior determination that a bargaining unit composed of all noninstructional employees of a school district is presumptively appropriate, determined that the combined unit would be more appropriate' for purposes of collective bargaining. The Commission ordered the bargaining units to be combined if a majority of the members of each bargaining unit voted in favor of merger at elections ordered by the Commission. The school district seeks review of that order. Held:

    1. While.the findings of fact by the Employment Relations Commission will be upheld by the Court of Appeals if supported by competent, material and substantial evidence and the Court of Appeals will not substitute its judgment on factual questions for that of the Commission, the Commission’s determination that the combined bargaining unit was more appropriate than the separate bargaining units was not supported by adequate findings. The Commission cited few facts supporting the rationale for a combined bargaining unit. The Commission, rather, primarily rested its determination upon the previously established Commission determination that a bargaining unit comprising all noninstructional employees in a school district is presumptively appropriate. Under these circumstances, the Commission’s determination that the merged unit was more appropriate was not supported by the necessary competent, material and substantial evidence.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law § 456.

       48A Am Jur 2d, Labor and Labor Relations §§ 1766, 1767.
    Bargainable issues in state public employment labor relations. 84 ALR3d § 242.

      2. While the Commission may order an advisory election among the employees affected by a proposed merger of separate bargaining units into a single bargaining unit, such an election may be ordered only if the Commission has first determined that both the combined bargaining unit and the separate bargaining units are appropriate bargaining units.
    Reversed and remanded.
    1. Administrative Law •— Appeal and Error — Fact Questions.
    Findings of fact made by the Employment Relations Commission are to be upheld if supported by competent, material and substantial evidence; the Court of Appeals should not substitute its judgment for that of the Commission when dealing with a factual question.
    2. Labor Relations —• Appropriate Bargaining Unit — Merged Bargaining Unit — Factual Basis.
    The Employment Relations Commission’s determination that a merged bargaining unit, made up of two separate bargaining units representing a school system’s custodial, maintenance and supply employees and the school system’s cafeteria employees, was more appropriate than the separate bargaining units is not supported by competent, material and substantial evidence where there is little commonality of interests between the separate bargaining units and the Commission’s determination seems primarily to be based upon policies established in the Commission’s determinations in prior cases rather than findings to support its conclusion.
    3. Labor Relations — Merged Bargaining Unit — Advisory Election — Appropriate Bargaining Unit.
    The Employment Relations Commission may order an advisory election among the employees affected by a proposed merger of separate bargaining units into a single bargaining unit, if, and only if, the Commission has first determined that both the merged bargaining unit and the separate bargaining units were appropriate bargaining units.

      Miller, Johnson, Snell & Cumnaiskey (by Peter A. Patterson and Michael A. Snapper), for the Lansing School District.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for the Michigan Employment Relations Commission.

      Klimist, McKnight & Sale, P.C., for Council 11, American Federation of State, County and Municipal Employees, AFL-CIO.
    Before: Bashara, P.J., and D. E. Holbrook, Jr. and J. C. Daner, JJ.

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

   Bashara, P.J.

The Lansing School District seeks review of an order of the Michigan Employment Relations Commission (MERC). The order resulted from a decision and a decision upon reconsideration and required that an election be held among the school district’s custodial-maintenance-supply employees and its cafeteria employees. The purpose of the election was to determine whether the employees preferred to be a single bargaining unit or to remain as two separate bargaining units of the American Federation of State, County and Municipal Employees (AFSCME).

The custodial employees have been represented as a separate bargaining unit by AFSCME since 1965. The cafeteria employees have been similarly represented as a separate bargaining unit since 1967. In March of 1977, AFSCME filed with MERC a petition for election, asking that the Commission merge the two units into one. The petition prayed that the matter be treated as a "petition for clarification or as a representation petition, whichever is appropriate”.

The Commission issued its decision in April of 1978, finding that a combined unit would be more appropriate for purposes of collective bargaining. However, it then determined that the best method for decision was to conduct a separate election among the two bargaining units. If a majority in each unit voted to merge, they would be combined. If there was not a majority in favor of merger in both units, then they would remain separately represented by AFSCME.

The school district first questions the form of the Commission’s decision. It contends that the determination did not adequately state findings of fact and was not supported by competent, material and substantial evidence on the whole record.

The Commission’s decision must comport with the requirements of MCL 24.285; MSA 3.560(185):

"A final decision * * * shall include findings of fact and conclusions of law. * * * Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. * * * Each conclusion of law shall be supported by authority or reasoned opinion.”

MCL 24.306(l)(c); MSA 3.560(206)(l)(c) further provides:

"[T]he court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is * * * [m]ade upon unlawful procedure resulting in material prejudice to a party.”

A review of the Commission’s decision reveals adequate documentation for the proposition that continuance of two separate units would be appropriate. The Commission’s only finding regarding a merged unit is as follows:

"After a careful review of the nature of the jobs involved, the comparative benefits and Employer’s administrative hierarchy, the Commission is of the opinion, as in previous determinations of appropriateness of school units of nonteaching employees, that the more appropriate bargaining unit would be a combined cafeteria and custodial-maintenance bargaining unit.” (Footnote omitted.)

The facts supporting the rationale for a merged unit were few. They consisted of the finding , that the director of labor relations sat at the third and fourth steps of the grievance procedure for both units, and that custodians came into contact with kitchen service employees.

We initially note that Const 1963, art 6, § 28 and MCL 423.23(e); MSA 17.454(25)(e) mandate that the findings of fact of an administrative agency should be upheld if supported by competent, material and substantial evidence. This Court should not substitute its judgment for that of the Commission when dealing with a factual question. Regents of the University of Michigan v Employment Relations Commission, 389 Mich 96; 204 NW2d 218 (1973).

In the instant case, however, the factual determination that a merged unit is the more appropriate seems primarily to come from Commission policy set forth in its prior decisions.

In Livonia Public Schools, 1967 MERC Lab Op 780, 794, the following is set forth:

"A unit of all non-instructional employees at a school system, except office clerical employees, is presumptively appropriate, since such a unit ordinarily shares a basic community of interest. This, of course, does not, per se, foreclose the possibility of smaller units being also appropriate, based on peculiar interest not shared with other non-instructional employees. The unit, in short, need not be the 'ultimate unit’. * * * The test, rather, is that it must be shown that the smaller unit shares an internal community of interest which sets it apart from other employees in terms of wages or working conditions. These distinguishing features must be basic and such as might naturally lead to conflicts with the self interest of other employee groups.” (Citations omitted.)

We are mindful of the Supreme Court’s statement in Hotel Olds v State Labor Mediation Board, 333 Mich 382, 387; 53 NW2d 302 (1952):

"We note the decision of the Massachusetts Labor Relations Commission, In re Salem Hotel Corporation d/b/a the Hawthorne Hotel and the Hotel and Restaurant Workers, Local 290, AFL, 19 LRRM 1245, decided November 20, 1946:
'In designating bargaining units as appropriate, a primary objective of the commission is to constitute the largest unit which, in the circumstances of the particular case is most compatible with the effectuation of the purposes of the law and to include in a single unit all common interests.’
"The quoted statement in the Hawthorne Case is, so far as applicable to the instant case, in keeping with the directions of the cited proviso of the statute.”

The matter is further delineated in Eastern Michigan Univeristy Regents v Eastern Michigan University Professors, 46 Mich App 534; 208 NW2d 641 (1973), wherein this Court concluded that the members of an appropriate bargaining unit must have a common interest in the terms and conditions of employment.

In sum, we cannot find that the Commission has made adequate findings to support its conclusion that a merged unit is the more appropriate for purposes of collective bargaining.

The Commission itself seems to question the validity of its finding by concluding that the presumption will be tested by an election. The Commission is, in effect, holding that if the employees should vote for merger, then it shows that there was a community of interest. We cannot believe the statutory or decisional mandate leads in that direction.

Because there are no judicial guidelines extant in two remaining issues raised, we speak to them in the hope that guidance may be provided for this and future matters.

The school district questions the propriety of the Commission’s order directing an election to determine whether the bargaining unit should be single or separate.

MCL 423.213; MSA 17.455(13), authorizes the Commission to decide the appropriate unit for purposes of collective bargaining. The act does not specify the method to be used. The term "election”, as used in the public employment relations act (PERA), MCL 423.201 et seq.; MSA 17.454 et seq., does seem to extend only to representation elections. Conversely, it could be said that there is no specific restriction on the right of the Commission to hold an advisory election.

The applicable provision of the National Labor Relations Act dealing with the power of the Board to decide the appropriate collective bargaining unit is similar in all respects to the Michigan statutory provision. 29 USCA 159b. In National Labor Relations Board v Underwood Machinery Co, 179 F2d 118 (CA 1, 1949), the court dealt with a substantially similar factual situation interpreting § 159b.

The employees of a machinery company were distributed among three departments; a machine shop, plate shop, and erection and maintenance department.

The union petitioned for a bargaining unit composed of all production, maintenance and shipping employees. The company opposed the inclusion of erection and maintenance employees. After consideration, the National Labor Relations Board found that either an inclusive unit or separate units would be appropriate.

The Board ordered an election to be held among the employees of the two units in the same manner the Commission has proposed in the instant case. The employer appealed claiming the board improperly delegated to the employees themselves the determination of what should be the appropriate unit.

The Underwood court held that where the Board found either unit to be appropriate,

"The wishes of the employees are a factor in a Board’s conclusion upon a unit; they are to be weighed with the similarity of working duties and conditions, the character of the various plants, and the anticipated effectiveness of the unit in maintaining industrial peace through collective bargaining. Pittsburgh Plate Glass Co v National Labor Relations Board, 313 US 146, 61 S Ct 908, 85 L Ed 1251. In this case, after considering all of the circumstances of the situation with reference to whether there should be one or two units elected as the appropriate collective bargaining agency, the Board came to the conclusion that the single factor that would tip the scales was the preference of the employees. The Board’s determination, based upon the expression of the employees’ practically unanimous preference, cannot be said to be improper and invalid.” 179 F2d 118 at 121.

The Underwood court was careful to point out that the NLRB first found that either merged or separate units would be appropriate before ordering an election. So too, we must conclude that § 13 of the PERA authorizes the Commission to make the finding of the appropriateness of the unit. It is only where the Commission finds that either unit would be appropriate that an election is warranted.

Finally, we reject the school district’s contention that an election to determine the appropriate bargaining unit is prohibited under MCL 423.214; MSA 17.455(14). The statute provides, in part, that:

"An election shall not be directed in any bargaining unit or any subdivision within which, in the preceding 12 month period, a valid election was held.”

The clear import of that provision relates to representation elections. It is irrelevant to the facts at issue here.

Reversed and remanded for proceedings consistent with this opinion.

       We respectfully draw the Commission’s attention to the case of Pacific Southwest Airlines v National Labor Relations Board, 587 F2d 1032, 1038 (CA 9, 1978), for an excellent discussion of factors to be considered in determining whether a bargaining unit is appropriate.