text:
    MENDYK v MICHIGAN EMPLOYMENT SECURITY COMMISSION
    Docket No. 78-3657.
    Submitted June 12, 1979, at Lansing.
    Decided June 19, 1979.
    Plaintiff, Lorraine Mendyk, was going to pick up her unemployment check when she fell on a public sidewalk abutting the defendant’s, Michigan Employment Security Commission (MESC), office. Plaintiff sued defendant in the Court of Claims, alleging that she fell on a patch of ice which defendant had negligently caused or permitted to form on the sidewalk. She claimed that the sidewalk had twice been shoveled and salted on the morning of her fall and that the presence of the salt on the shoveled snow caused it to melt, run onto the sidewalk and freeze, creating the ice upon which she slipped and fell. At trial plaintiff attempted to introduce the deposition of one of defendant’s employees. Defendant objected to its use for any purpose except impeachment of the deponent. Plaintiff also attempted to introduce an accident report made by the assistant manager of defendant’s office as a result of his investigation of the incident. The court, Ernest F. Oppliger, J., ruled that the deposition could only be used for impeachment purposes and that the accident report was inadmissible. It further ruled that the plaintiff could only recover for a slip on an unnatural accumulation of ice caused by cleaning the sidewalk where the condition of the area was rendered worse than its original condition and that plaintiff had failed to sustain her burden of proof. Plaintiff appeals. Held:

      References for Points in Headnotes

       39 Am Jur 2d, Highways and Streets § 517.
    62 Am Jur 2d, Premises Liability § 272 et seq.

    Liability of abutting owner or occupant for condition of sidewalk. 88 ALR 2d 331.
    Liability for injuries in connection with ice or snow on nonresidential premises. 95 ALR 3d 15.

       62 Am Jur 2d, Premises Liability § 273.
    39 Am Jur 2d, Highways and Streets §§ 519, 520.
    Abutting owner’s liability for injury from ice formed on sidewalk by discharge of precipitation due to artificial conditions of premises. 18 ALR2d 428.
    Place or manner of deposting snow moved by abutting owner or occupant as affecting his liability to predestrain injured in street. 71 ALR3d 793
    Liability for injuries in connection with ice or snow on nonresidential premises. 95 ALR 3d 15.

       23 Am Jur 2d, Depositions and Discovery § 106.

       30 Am Jur 2d, Evidence §§ 931, 934, 1002.

      1. A landowner has no common-law duty to keep an abutting public sidewalk free of ice and snow and is not liable, even to business invitees, for injuries sustained through a slip and fall on natural accumulations of ice and snow on a public sidewalk abutting his property. It is only where snow or ice accumulates on a sidewalk because of a negligent affirmative act of an abutting landowner or where the landowner’s act increases the danger from a natural accumulation that the property owner may be held for an invitee’s slip and fall. An abutting landowner is liable for injuries sustained by a business invitee who slips on an accumulation of ice formed as a result of snow being shoveled from the area and salted, causing the snow to melt, run onto the area and freeze. Such action of the abutting landowner increases the hazard from trudging through snow to walking on ice.
    2. A deposition of an employee of an adverse party may by court rule be introduced at trial for any purpose. The deposition should have been admitted.
    3. An accident report which is not typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others or to provide internal controls does not properly come within the business record exception of the hearsay rule. The basis of the business record exception is the probability of trustworthiness of those business records which are the routine reflections of the day to day operations of the business. The accident report was properly excluded from evidence.
    Reversed and remanded for a new trial.
    1. Negligence — Public Sidewalk — Abutter — Maintenance — Duty — Common Law.
    A landowner has no common-law duty to keep an abutting public sidewalk free of ice and snow and is not liable, even to business invitees, for injuries sustained through a slip and fall on natural accumulations of ice and snow on a public sidewalk abutting his property.
    2. Negligence — Sidewalks •— Abutting Landowners —■ Ice and Snow — Natural Accumulations — Negligent Affirmative Act — Slip and Fall.
    It is only where snow or ice accumulates on a sidewalk because of a negligent affirmative act of an abutting landowner, or where the landowner’s act increases the danger from a natural accumulation that the property owner may be held for an invitee’s slip and fall; an abutting landowner is liable for injuries sustained by a business invitee who slips on an accumulation of ice formed as a result of snow being shoveled from the area and salted, causing the snow to melt, run onto the area and freeze; such action of the abutting landowner increases the hazard from trudging through snow to walking on ice.
    3. Evidence — Depositions — Employee of Adverse Party — Court Rules.
    A deposition of an employee of an adverse party may by court rule be introduced at trial for any purpose (GCR 1963, 302.4[2]).
    4. Evidence — Hearsay — Business Record Exception — Statutes — Accident Reports.
    An accident report which is not typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others or to provide internal controls does not properly come within the business record exception of the hearsay rule; the basis of the business record exception is the probability of trustworthiness of those business records which are the routine reflections of the day to day operations of the business (MCL 600.2146; MSA 27A.2146).

      Van Benschoten & Van Benschoten, for plaintiff.

      Hoffmann, O’Neill, Ackerman, Wallace, Doyle & Jones, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

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

   T. M. Burns, J.

Plaintiff-appellant, Lorraine Mendyk, appeals of right an August 30, 1978, judgment of the Court of Claims of no cause of action in the instant negligence action. We reverse and remand for a new trial.

On April 4, 1975, plaintiff slipped and fell in front of the Michigan Employment Security Commission (MESC) office in Saginaw, Michigan. Plaintiff testified at trial that at the time of the accident she was on her way to the MESC office to pick up her weekly unemployment compensation check.

Plaintiff, on the morning of the accident, had parked her automobile in a parking lot across the street from the MESC office. Upon alighting from her vehicle, plaintiff crossed the street and entered onto a sidewalk that abuts the MESC office. In order to get to the entrance to the office, plaintiff was required to walk on the sidewalk for about 30 feet. She testified at trial that although it had snowed a short time prior to the accident, the sidewalk appeared to be clear and that snow had been piled along each side of it.

Adjacent to the entrance to the MESC office is a mailbox. Plaintiff testified that as she attempted to enter the office she walked in front of the mailbox and at that point slipped and fell. She was only approximately two or two and one-half feet from the entrance to the building when she fell. As she was lying on the sidewalk waiting to be taken to the hospital, she felt the presence of ice underneath her body. As a result of her fall, plaintiff suffered a broken leg and a broken ankle.

Ms. Kathleen Preston, an employee of the MESC who testified on its behalf at trial, stated that when she learned of plaintiffs fall she ran to plaintiffs side to comfort her. She further testified that she saw snow packed around the base of the mailbox near where plaintiff had fallen. Some of this snow apparently had melted into water and the water was draining down the sidewalk towards the street. Although she testified that there was no ice on the sidewalk where plaintiff had fallen, Ms. Preston acknowledged that plaintiff had lain on the sidewalk for 10 to 15 minutes. When plaintiff was later assisted up from the sidewalk, Ms. Preston noticed that the back of plaintiff’s coat was soaked with water. After an ambulance had taken plaintiff to the hospital, Ms. Preston obtained some salt and sprinkled it around the area of plaintiff’s fall.

In an opinion dated August 16, 1978, the Court of Claims found no cause of action, holding that plaintiff could not recover if she fell on a natural accumulation of ice or snow. The Court of Claims further rejected plaintiff’s argument that she fell on an unnatural accumulation of ice that had frozen on the sidewalk as a result of the manner in which defendant had earlier attempted to clean the sidewalk of snow. The Court of Claims judge held that a party who attempts to make a sidewalk more safe is not liable for injuries that occur to passersby in the absence of evidence that the cleaning efforts had made the sidewalk more dangerous than its original condition.

Plaintiff first argues that the lower court erred in applying the "natural accumulation of ice or snow rule” to this case because the Supreme Court abrogated that rule in situations involving injury to a business invitee. See, Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), reh den 395 Mich 923 (1976).

Michigan law has long held that a property owner has no liability for a plaintiff’s injuries that were caused solely by a slip and fall on a natural accumulation of ice or snow. Lubbers v Manlius Twp, 172 Mich 387; 137 NW 804 (1912), Stanton v Webster Twp, 170 Mich 428; 136 NW 421 (1912), Johnson v City of Marquette, 154 Mich 50; 117 NW 658 (1908). This general rule was cited and approved by this Court in its recent decision in Hampton v Master Products, Inc, 84 Mich App 767; 270 NW2d 514 (1978). In Hampton, a plaintiff was injured after she exited from her automobile and was attempting to walk over a pile of snow that had been thrown up on a sidewalk by municipal snow removal machinery. The plaintiff’s purported right to recovery was asserted under MCL 691.1402; MSA 3.996(102), which requires governmental units to maintain streets and keep them reasonably safe and fit for public travel. In its opinion the Hampton Court noted:

"The mere presence of snow or ice on a highway, street, or walk in wintertime, which causes travelers difficulty, does not constitute negligence on the part of the public authorities. A municipality in Michigan is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes. Mayo v Village of Baraga, 178 Mich 171; 144 NW 517 (1913). See also, Wesley v Detroit, 117 Mich 658; 76 NW 104 (1898), and Johnson v Pontiac, 276 Mich 103; 267 NW 795 (1936).
"When, however, the accumulation of ice and snow is the result of unnatural causes, the municipality may be liable. In order to render a municipality liable, the interference with travel must be unusual or exceptional, that is, different in character from conditions ordinarily and generally brought about by winter weather in a given locality.” Id, 770.

Historically, the "natural accumulation” rule has been used not only to preclude a plaintiff’s recovery against a governmental unit but also to preclude recovery in a suit against a private land owner. See, Bard v Weathervane of Michigan, 51 Mich App 329; 214 NW2d 709 (1974), Gillen v Martini, 31 Mich App 685; 188 NW2d 43 (1971). However, in Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, supra, the Supreme Court overruled existing Michigan law insofar as that law indicated that the "natural accumulation” rule applied in the invitor-invitee context. The Court held that the legal duty of an invitor to exercise reasonable care for the invitee’s safety included the duty to take reasonable measures within a reasonable time after an accumulation of ice or snow to diminish the hazard of injury to the invitee. Although the Supreme Court concluded that the plaintiff before it, who was an invitee of the defendant and who had slipped and fallen on ice in the defendant’s private parking lot, would be permitted to recover, the Court specifically declined to consider whether the rule that it was enunciating would be applied to cases where a plaintiff slipped on a public sidewalk:

"The thrust of existing Michigan case law tends to support the conclusion generally drawn that the 'natural accumulation’ rule applied in the context of the invitee — invitor relationship. See, in particular, Perl v Cohodas, Peterson, Paoli, Nast Co, 295 Mich 325; 294 NW 697 (1940). Cf. Weider [v Goldsmith, 353 Mich 339; 91 NW2d 283 (1958)], supra; and Betts v Carpenter, 239 Mich 260; 214 NW 96 (1927). The line of cases noting the natural accumulation rule, however, uniformly fails to harmonize or reconcile this rule with the rigorous duty which the law recognizes as owed an invitee. See, for a general discussion of the duty owed an invitee and distinction between such' duty and the duty owed a licensee, Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970), and compare Torma [v Montgomery Ward & Co, 336 Mich 468; 58 NW2d 149 (1953)], supra — a case which recognizes this rigorous duty — and the cases cited above which discuss and rely solely upon the natural accumulation rule.
"Judge Holbrook, in his dissenting opinioii in Bard v Weathervane, opined that Michigan case law approved the 'natural accumulation’ rule with respect to public sidewalks but not with respect to private property in the context of the invitor — invitee relationship. Proceeding from the distinction between public and private property, Judge Holbrook would find a broader duty with respect to natural accumulations of ice and snow owed the business invitee than is owed the user of public streets or sidewalks. On this appeal we do not determine the duty owed the user of public streets and sidewalks. Under present Michigan law, liability for failure to keep public highways (including sidewalks) 'in condition reasonably safe and fit for travel’ falls principally upon the involved governmental unit and is statutorily defined. MCLA 691.1401 et seq.; MSA 3.996(101), et seq., and Levendoski v Geisenhaver, 375 Mich 225; 134 NW2d 228 (1965). Decision of the case at hand does not require us to address the scope of the statutory duty owed the user of public streets and sidewalks respecting natural accumulations of ice and snow. We need not, therefore, pass upon the merits of the holdings in cases (e.g., Weider, supra; and Betts, supra) which deal with injury from accumulations of ice and snow occurring on public streets and sidewalks.” (Emphasis in original.) Quinlivan, supra, 255-257.

There is no question but that in the case before us plaintiff was a business invitee of defendant, MESC. An employee of the MESC testified at trial that while plaintiff was lying on the sidewalk someone obtained her unemployment check from the MESC office and gave it to her. Further, although plaintiff testified that she fell within a step or two of the MESC entrance, she does not contest the finding of the Court of Claims that she fell on a public sidewalk. Thus, assuming that plaintiff fell on a public sidewalk and that her accident resulted from a natural accumulation of ice or snow, the question before us is whether Quinlivan would permit her to recover as a business invitee of the MESC.

Plaintiff argues that the Supreme Court’s decision in Quinlivan stands for the proposition that an invitee may now sue a property owner for injuries arising out of a slip and fall on ice in all circumstances. The MESC counters that Quinlivan stands for the proposition that such plaintiffs may sue only where the accident occurs on the invitor’s property. It appears that the defendant MESC has the best of this argument.

In Tugender v Rosenblatt, 23 Mich App 580, 581-582; 179 NW2d 181 (1970), a panel of this Court held that a private land owner has no common-law duty to keep an abutting public sidewalk free of ice or snow:

"This Court is convinced that the trial court’s appraisal of defendant’s duty was correct. The general rule, of course, is that there is no common-law liability for maintenance of a sidewalk by an abutter. Grooms v Union Guardian Trust Co (1944), 309 Mich 437; Weider v Goldsmith (1958), 353 Mich 339; Hughes v City of Detroit (1953), 336 Mich 457; 82 ALR2d 995.
" 'In the absence of a statute or ordinance to the contrary, the general rule is that there is no duty on an adjoining owner to keep a sidewalk in repair.’ Levendoski v Geisenhaver (1965), 375 Mich 225, 227.
"This Court recognized this rule of law in Berman v LaRose (1969), 16 Mich App 55, 57. As plaintiffs recognize, the existence of an ordinance or statute does not alter the result. Grooms v Union Guardian Trust Co, supra; Levendoski v Geisenhaver, supra, p 227. This is true even though the injured party is a business invitee or a social guest.
" 'It is the generally recognized common-law rule * * * that the owner or occupant of property abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public, including invitees or business invitees of the abutter, a duty to keep the sidewalk in a safe condition’ 88 ALR2d 331, 337, 338.” (Emphasis in original.)

Thus, it appears from the opinion of this Court in Tugender, that Quinlivan cannot stand for the proposition that an invitee in Michigan now has a cause of action against a property owner-invitor for a slip and fall on a natural accumulation of ice where the slip and fall occurs on the sidewalk abutting the invitor’s land. To hold otherwise would extend the invitor-property owner’s liability for accidents caused on abutting sidewalks in the ice and snow circumstance beyond that which the property owner would have for accidents on the abutting sidewalk that resulted from other causes. However, our holding on this question does not dispose of this case.

Our examination of the Court of Claims’ findings of fact shows that it made no finding relative to whether an unnatural accumulation of ice had occurred on the sidewalk where plaintiff fell. Plaintiff argued below, as she does here, that if the agents or employees of the MESC who had cleaned the sidewalk before her accident caused snow to be thrown up alongside the sidewalk and salted in such a way that it later melted and froze on the sidewalk then she was entitled to recover. The lower court disagreed, holding that plaintiff could not recover even if this situation had occurred because she had failed to prove that the MESC’s attempt to clean the sidewalk had increased the hazard of travel on it.

The "increased hazard” rule was discussed by the Court in Weider v Goldsmith, supra, and approved of by the Court in Woodworth v Brenner, 69 Mich App 277; 244 NW2d 446 (1976). However, those two cases are distinguishable from the instant one. In both Weider and Woodworth, the evidence showed only that the landlord had cleared the sidewalk by shoveling snow to abutting ground. Following the landlord’s action, natural forces melted a portion of the shoveled snow back onto the sidewalk where it froze into ice. Further, in neither of these two cases was the plaintiff a business invitee of the defendant.

In the instant case the sidewalk abutting the MESC office had twice been shoveled and salted on the morning of plaintiff’s slip and fall. It is the presence of this salt on the snow that plaintiff claims caused it to melt and freeze on the sidewalk. If this is true, then the action of the MESC in salting the sidewalk increased the plaintiff’s hazard from one involving her trudging through snow to one involving her walking on ice. It is clear that her chances of injury from the latter are greater than her chances of injury from the former. This fact, coupled with the existing case law authority that recognizes the invitor’s rigorous duty of care owed to an invitee, leads us to hold that if plaintiff can establish her version of the facts by a preponderance of the evidence then she is entitled to recover for her injury.

Although an appropriate disposition of this case might be to remand it to the Court of Claims for further findings of fact on whether plaintiff did slip and fall on ice that had formed because of action taken by the defendant, a further erroneous evidentiary ruling by the Court of Claims requires us to remand this cause for a new trial.

Plaintiff attempted to introduce into evidence at trial the deposition of one of defendant MESC’s employees, Ms. Kathleen Preston. Defendant objected to the introduction of this deposition for any purpose except impeachment of Ms. Preston. The Court of Claims sustained defendant MESC’s objection, ruling that because Ms. Preston testified at trial her deposition could only be used to impeach her. This ruling was clear error. GCR 1963, 302.4(2) provides that the deposition of an employee of an adverse party may be introduced into evidence at trial for any purpose. Therefore, the Court of Claims should have permitted plaintiff to introduce into evidence Ms. Preston’s deposition as substantive evidence. Further, we cannot say that the lower court’s error in this ruling was harmless only.

Ms. Preston was the only defense witness to testify at trial who actually saw plaintiff as she lay on the sidewalk following her accident. At trial, Ms. Preston affirmatively testified that there was no ice on the sidewalk at the time of plaintiff’s accident. However, in her deposition, Ms. Preston stated that she could not be sure that there wasn’t ice on the sidewalk. We believe that, had the lower court considered Ms. Preston’s deposition testimony as substantive evidence and followed the correct rule of law, the results reached in the first trial might have been different.

Plaintiff raises one final issue in this appeal that requires our consideration. As part of her case in chief she attempted to introduce into evidence an accident report based upon an investigation conducted by the assistant manager of the defendant MESC office. Plaintiff argued that this report was admissible as a business record made in the regular course of business. The Court of Claims disagreed and excluded the report from evidence.

In pertinent part, MCL 600.2146; MSA 27A.2146 provides:

"Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any case or suit in any court, or before any officer, arbitrators or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. * * *”

This statutory exception to the hearsay rule does not cover all interoffice memorandums. In Central Fabricators, Inc v Big Dutchman Division of U S Industries, Inc, 398 Mich 352, 357-358; 247 NW2d 804 (1976), the Michigan Supreme Court, quoting Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), held that this statute did not permit the introduction into evidence of a report that was:

"[N]ot a record made for the systematic conduct .of the business as a business. An accident report may affect that business in the sense that it affects information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls. * * * The probability of trustworthiness of records because they were routine reflections of the day to day operations of the business would be forgotten as the basis of the rule.”

Under the Supreme Court’s interpretation of this statute then, the lower court did not err in its ruling on this question. Plaintiff failed to establish at trial a proper foundation for the admission of the accident report into evidence. Specifically, there is no evidence in the record that the report was made in the regular course of business or that it was defendant’s regular practice to make such reports at the time of similar accidents or within a reasonable time thereafter. Therefore, because the requirements of this statute were not met, the lower court’s ruling cannot be said to have been clearly erroneous.

Reversed and remanded for a new trial. Costs to abide final resolution of this litigation.


source: Caselaw Access Project

author: Allen, P.J.

license: Public Domain

text:
    PEOPLE v M & B EQUIPMENT COMPANY
    Docket No. 78-3660.
    Submitted November 20, 1979, at Detroit.
    -Decided December 19, 1979.
    A tractor in train with a semi-trailer and a trailer owned by M & B Equipment Company was stopped by a Public Service Commission officer who suspected that the vehicle was overweight. Three axles of the semi-trailer were weighed together and this figure was divided by three to show the weight per axle at 18,300 pounds which was 5,300 pounds over the legal weight limit per axle of 13,000 pounds. The three axles were equipped with an equalizer in the suspension between them. The officer stated that he could have weighed each axle separately but elected to weigh them together to save time. The public service officer signed a complaint and in the trial that followed a district court jury found M & B guilty. A fine of $1,590 plus costs of $200 was assessed by the court. M & B appealed the district court decision to Macomb Circuit Court. Frank E. Jeannette, J., affirmed the district court conviction of M & B on the charge of operating an overweight truck. Defendant appeals by leave granted. The question presented is: Where three axles of a semi-trailer, equipped with an equalizer in the suspension between them, are weighed together rather than separately, and a fine is imposed in accordance with the total overweight divided by three, is said procedure and fine in accordance with the provisions of the overweight law. Held:

    Excess load is measured on a weight per-axle basis for the purpose of levying overweight fines. Axles may not be weighed together to compute a per-axle weight by assuming that each axle carries an equal share of the excess weight. The graduated penalty provisions of the overweight statute require exact rather than an average per-axle determination of overweight. It was error to send the case to the jury on the basis of an averaging procedure to establish overload by weighing three axles together. The district court verdict, the assessment of fine, and the circuit court’s affirmance are all contrary to law.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes § 194 et seq.

    7 Am Jur 2d, Automobiles and Highway Traffic §§ 160, 167, 313.
    Construction and operation of statutes or regulations restricting the weight of motor vehicles or their loads. 45 ALR 3d 503.

       21 Am Jur 2d, Criminal Law § 17.
    73 Am Jur 2d, Statutes § 274.

      Reversed.
    1. Fines — Weight Restrictions — Gross Vehicle Weight — Excess Weight — Statutes.
    A statute provides that "gross vehicle weight” may be determined by weighing groups of truck or trailer axles but nothing in the statute states that such procedure shall be permitted to determine "excess load”, which, according to precedent, is done on a weight-per-axle basis for the purpose of levying overweight fines; it is error to weigh axles together and compute a per-axle weight by assuming that each axle carries an equal share of the excess weight for purposes of assessing overweight fines. (MCL 257.722, 257.724; MSA 9.2422, 9.2424).
    2. Statutes — Criminal Law — Penal Statutes — Strict Construction.
    A penal statute should be construed strictly in favor of an accused.

      George N. Parris; Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Antonio Cavaliere, Assistant Prosecuting Attorney, for the people.

      Sullivan & Leavitt, P.C. (by Andrew J. Haliw), for defendant.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   Allen, P.J.

Where three axles of a semi-trailer, equipped with an equalizer in the suspension between them, are weighed together rather than separately, and a fine is imposed in accordance with the total overweight, divided by three, is said procedure and fine in accordance with the provisions of the vehicle overweight law, MCL 257.122; MSA 9.2422 and MCL 257.724; MSA 9.2424? On June 30, 1978, the circuit court answered this question in the affirmative when it affirmed the district court conviction by jury of defendant on a charge of operating an overweight truck. Defendant appeals by leave granted. The issue presented is of first impression and of considerable importance to the Public Service Commission and the trucking industry.

On January 21, 1977, one of the defendant’s trucks carrying clay fill on 1-94 was stopped by a Public Service Commission officer who suspected the vehicle was overweight in violation of the statute cited above. The truck was a 1973 Mack Tractor in train with a semi-trailer and a trailer. A schematic drawing, not made to scale, best illustrates the weighing procedure.

The truck was taken to the nearest weigh station where a platform scale was used. Axles #2 and #3 weighed 40,250 pounds together. The maximum for each axle is 16,000 pounds and the officer divided by two and determined that each axle weighed 20,100 pounds. The district court jury eventually found no violation as to these axles and the matter is not pursued on appeal.

The controversy in this appeal pertains to axles #4, & #5, and #6 under the trailer. These were weighed together at 55,100 pounds. The officer divided this figure by three, rounded off, to show a weight per axle of 18,300 pounds, 5,300 pounds over the legal weight limit per axle of 13,000 pounds. The remaining axles, #7-11 were weighed and found to be underweight. The officer testified that axles #4, #5, and #6 were "equalized” by interconnecting springs which shifted some of the weight on one axle to another. However, the officer admitted the weight on each axle would not necessarily be identical. He further stated that he could have weighed each axle separately but elected to weigh them together to save time. In so doing, he said, he was following the Public Service Commission truck weighing manual. He explained that weighing all axles together, the truck owner could "come out on top”.

The trial judge did not instruct the jury to determine the amount of the overweight per axle but instructed:

"You’re presented with three possible verdicts in this particular matter. It is alleged by the Mr. Piche, as a representative of the Department of Commerce Public Service Commission, that axles two and three were each 4,100 pounds overweight or a combined overweight of 8,200 pounds.
"A separate allegation is that four, five and six were each 5,300 pounds overweight.
"Of course, you may find the Defendant not guilty on either charge. You could find the defendant guilty of being 8,200 pounds overweight or you could find the Defendant guilty of being 15,900 pounds overweight or could find the Defendant guilty of being 24,100 pounds overweight.
"You have heard the evidence. You are the ones to determine the facts and as I look at the summons, there are two separate matters involved. You have axles two and three and then you have four, five and six. The balance of the equipment is not under challenge so therefore, that would be the verdicts as I would see it.
"You could find them not guilty on either charge as to axles two and three or not guilty to four, five and six or you could return a verdict, depending upon what you determine, the overweight, if any, to be. That is your entire province to determine for me what the overweight is, if any, and I’m not suggesting that there is or isn’t overweight but you have heard the testimony and that is for you to consider.”

The jury returned a verdict of not guilty as to axles #2 and #3, and guilty as to axles #4, #5 and #6 but without specifying any amounts of overweight, either in gross or per axle. Defem dant’s motion for a new trial was denied and a penalty of $1,590 was assessed by the trial judge who computed the penalty at $.10 per pound on a total overweight of 15,900 pounds divided by 3, or $530 per axle. Defendant appealed the jury’s verdict to the Macomb County Circuit Court which, on June 30, 1978, affirmed the district court verdict, judgment and fine.

The question presented is whether the applicable section of the vehicle overweight statute requires a determination of weight on a per-axle basis. The two sections involved were construed by our Supreme Court in People v Adamowski, 340 Mich 422; 65 NW2d 753 (1954). In that case five axles had been weighed separately and each axle found overweight. The circuit judge determined the fine by applying the statutory rate of fine (10 cents per pound) to the total overweight of the five axles combined, for a fine of $850. Later the trial judge reversed his position and applied the statutory rate of fine (6 cents and 2 cents) on a per-axle basis for a fine of $255. After carefully considering the legislative history of the act and noting that, in committee, language providing that excess load means excess of the total load weight was stricken, the court concluded that the fine should be levied on a per-axle basis. In our opinion, Adamowski controls unless, as defendant contends, that decision is no longer viable.

We are told that Adamowski does not control because, there, each axle had been weighed separately and the question presented was the method of calculating the fine (§ 724) rather than, as in the instant case, the determination of excess weight (§ 722). While this is technically correct, it is also true that the Adamowski Court could not arrive at the proper computation of the fine without first determining the correct method of weighing. This, the Court held to be on a per-axle basis. We are not persuaded by defendant’s argument on this point.

Second, we are told that since the date of Adamowski, the Motor Vehicle Code has been amended in two respects pertinent to the situation before us. Both amendments were made in 1967 PA 277. The first amendment added a new section, § 67a, which defined the phrase "tandem axle assembly” appearing in § 722(b) and § 722(c) when Adamowski was decided. We fail to perceive how a definition of a phrase in the statute present at the time the decision was handed down changes the decision. Additionally, the amendment pertains to a two-axle situation whereas the instant case involves a three-axle assembly.

Third, the second of the two amendments was the addition of subsection (g) to subsection 722(4). It reads:

"(g) For the purpose of enforcement of this act, the gross vehicle weight of a single vehicle and load or a combination of vehicles and loads, shall be determined by weighing individual axles or groups of axles and the total weight on all the axles shall be the gross vehicle weight.” (Emphasis supplied.)

We are told that by this amendment the Legislature authorized the weighing of groups of axles when, as here, the axles were connected with an equalizing mechanism. We do not agree. We read subsection (g) as permitting the weighing of groups of axles to determine the "gross vehicle weight”. Nothing therein states it shall be permitted to determine "excess load”. Had the Legislature really intended to broaden the statute so as to permit the computation of "excess load” by weighing groups of axles and dividing, we believe the Legislature would have clearly so stated. The fact that the Legislature has not done so indicates to us that the holding in Adamowski retains its vitality.

Finally, it is argued that the transcript clearly shows that the presence of an equalizer between axles #4-#6 consistently shifted weight between all three axles so that the weight on each was the same. The testimony was not all that clear. The arresting officer admitted that the method of weighing three axles together does not give the actual weight per axle. He Stated that the only Way axle weight can be accurately determined is to weigh each axle separately. While this may appear to be an overly technical construction of the statute, it must be remembered that the statute authorizes the levy of criminal penalties. Further, at oral argument counsel for plaintiff acknowledged that the degree to which an equalizing device succeeds in evenly distributing the load varies with the degree of maintenance and upkeep of the vehicle. Counsel also frankly acknowledged that the statute was ambiguous on the question at issue. Statutes penal in nature must be strictly construed in favor of the accused. 3 Sutherland, Statutory Construction (4th ed), § 59.03, p 6; Club Holding Co v Flint Citizens Loan & Investment Co, 272 Mich 66, 72; 261 NW 133 (1935). The graduated nature of the penalty provisions (§ 724[c]) require an exact, rather than an average, per-axle determination of overweight. For example, if an axle is found to be 2,000 pounds over the maximum allowed in § 722, the fine is 2 cents per pound or $40. But if the excess weight is found to be 5,300 pounds the fine is 10 cents per pound or $530. This being true, it simply does not follow that under the averaging method the customer "comes out on top”. If even one of the three axles in the instant case had weighed less than 5,300 pounds overweight, the fine would have been less.

Though we disagree with plaintiff’s interpretation of the statute, we are impressed by the problem which modern technology has thrust upon the Public Service Commission. The difficulty of accurately weighing multiple axle trucks per axle is staggering. It may well be that the public interest would be better served if, under certain conditions, excess weight could be determined by weighing groups of axles. The remedy lies with the Legislature rather than with administrative rule promulgated in a manual or with judicial construction by this Court. We respectfully suggest that the Legislature address the problem at its next session. Until the statute is so amended we hold it is error to weigh axles together and compute a per-axle weight by assuming each axle carries an equal share of the excess weight. It was error to send the case to the jury on such basis. Since the verdict, the assessment of fine, and the circuit court’s affirmance were all based on the averaging procedure, all are contrary to law. It now being impossible to rectify the mistake by computing the exact per-axle overweight, a new trial is not ordered.

Reversed. Defendant’s conviction and fine are vacated.

        Triple Combinations: Determine whether or not all three axles are operating as individual axles or if two or even three are connected by-means of an equalizer. (See semi-trailer in Exhibit C.) If any two or three axles in this combination are connected by an equalizer those axles should be weighed together and divided by the number of axles involved to determine the weight of each axle involved.

       There are two applicable sections. One is related to overweight, MCL 257.722; MSA 9.2422. The other pertains to the computation of the fine once the overweight is determined, MCL 257.724; MSA 9.2424.

       "Sec. 67a. 'Tandem axle assembly’ means 2 axles spaced more than 3 feet 6 inches and less than 9 feet apart, 1 axle in front of the other and so attached to the vehicle wherein an attempt is made by connecting mechanism to distribute the weight equally between the 2 axles.” 1949 PA 300, § 67a, added by 1967 PA 277, § 1, Eff. Nov. 2, 1967.

       "Gross vehicle weight” is defined in § 722(h)(iii). It also is relevant in § 724(c) which provides that a smaller fine may be imposed "where at the time of the violation either the motor vehicle, motor vehicle and semi-trailer, or trailer, did not exceed the total weight which would be lawful for each such unit by a proper distribution of the load upon the various axles supporting each such unit”. (Emphasis supplied.)

       Other grounds of error were raised by defendant but, because of our decision on the main issue, they are not considered in this opinion.


author: T. M. Burns, P.J.

text:
    ROONEY v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 78-5073.
    Submitted October 3, 1979, at Detroit.
    Decided December 19, 1979.
    Plaintiff Darlene Rooney was injured when struck by a snowmobile operated (on a road normally used by automobiles) by defendant William Kittle and owned by him and his wife, defendant Mary Kittle, who were uninsured. At the time of the accident, plaintiffs, Darlene and John Rooney, were insured under two policies with defendant Detroit Automobile Inter-Insurance Exchange (DAIIE) which provided benefits for accidental injuries "arising out of the * * * use of [an] uninsured automobile”. The policies specifically excluded from the term "uninsured automobile” any "land motor vehicle or trailer operated on rails or crawler treads”. Plaintiffs submitted a request for arbitration under the terms of the policies to the American Arbitration Association. DAIIE took the position that snowmobiles were not covered by the policies and refused to arbitrate. Plaintiffs next filed a Notice of Intent to Claim and Application for Payment with defendant Secretary of State pursuant to the Motor Vehicle Accident Claims Act. The claim was denied by the Motor Vehicle Accident Claims Fund for the reason that no "uninsured motor vehicle” was involved. Plaintiffs filed two suits in the Oakland Circuit Court, one against defendants Kittle and the other against DAIIE. In the Kittle case plaintiffs moved the court to declare a snowmobile a "motor vehicle” within the meaning of the Motor Vehicle Accident Claims Act. The Secretary of State filed a brief in opposition. The Secretary also intervened in the DAIIE case. The cases were consolidated for trial. The court, Farrell E. Roberts, J., entered an order declaring that a snowmobile is not a "motor vehicle” within the meaning of the Motor Vehicle Accident Claims Act. The Secretary was dismissed as a party. The court, in response to a motion by plaintiffs, reversed its prior ruling, declared a snowmobile to be a "motor vehicle” and ordered arbitration. The Secretary was reinstated as a party defendant. The court denied motions for vacation and reconsideration. DAIIE appeals. Held:

      Reference for Points in Headnote
    7 Am Jur 2d, Automobile Insurance § 99.

      A snowmobile is a "motor vehicle” for purposes of the insurance code. A clause in an automobile insurance policy excluding from uninsured motorist coverage injury caused by accidents arising out of the use of "a land motor vehicle or trailer operated on rails or crawler treads” is void as it applies to snowmobiles.
    Affirmed.
    Insurance — Uninsured Motorist Coverage — Exclusions — Snowmobiles.
    A snowmobile is a "motor vehicle” for purposes of the insurance code; a clause in an automobile insurance policy excluding from uninsured motorist coverage injury caused by accidents arising out of the use of "a land motor- vehicle or trailer operated on rails or crawler treads” is void as it applies to snowmobiles.

      Rosenbaum, Bloom, Appel & Moses, for plaintiffs-appellees.

      Condit & McGarry, P.C., for defendant.
    Amicus Curiae: Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Edgar L. Church, Jr., Assistants Attorney General, for the Secretary of State.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   T. M. Burns, P.J.

This lawsuit arises out of an accident that occurred on September 4, 1973, in the city of Wixom, Michigan, when plaintiff Darlene Rooney was struck and injured by a snowmobile being operated by one William Kittle. The snowmobile was owned by Kittle and his wife, who were uninsured.

At the time of the accident plaintiffs were insured under two policies of automobile liability insurance issued by defendant Detroit Automobile Inter-Insurance Exchange (DAIIE). These policies provided for the payment of certain benefits to an injured insured "caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile”. Specifically excluded from the term "uninsured automobile” was "a land motor vehicle or trailer operated on rails or crawler treads* * *”.

Plaintiffs attempted to arbitrate their claim for benefits pursuant to the terms of their policies with DAIIE, but the DAIIE refused to arbitrate and took the position that its uninsured motorist coverage was not applicable to snowmobile-related injuries for the reason that a snowmobile was not a motor vehicle within the meaning of the uninsured motorist coverage of the insurance policy.

Subsequently, plaintiffs filed a Notice of Intent to Claim and Application for Payment with the defendant State of Michigan pursuant to the applicable provisions of the Motor Vehicle Accident Claims Act. MCL 257.1101 et seq.; MSA 9.2801 et seq. Thereafter, the defendant state denied plaintiffs’ claim for the reason that no "uninsured motor vehicle” was involved in the accident. Thereupon, plaintiffs instituted the present suit in the Oakland County Circuit Court where they requested the court to declare a snowmobile to be a motor vehicle within the meaning of the Motor Vehicle Accident Claims Act.

In an opinion dated October 21, 1975, the lower court judge ruled that a snowmobile was not a motor vehicle within the meaning of the Motor Vehicle Accident Claims Act. Following this ruling, the defendant state was dismissed as a party defendant.

Plaintiffs then filed a motion to compel arbitration and on June 20, 1978, the trial judge reversed his prior order, declared the snowmobile to be an uninsured motor vehicle and ordered arbitration. The defendant state was reinstated as a party defendant. Defendant DAIIE now appeals and we affirm.

The Motor Vehicle Accident Claims Act defines "uninsured motor vehicle” as:

"* * * a motor vehicle as to which there is not in force a liability policy meeting the requirements of section 3009 of * * * [the Insurance Code of 1956; MCL 500.3009; MSA 24.13009] * * *, and which is not owned by a holder of self-insurance as provided in Section 531 of * * * [the Michigan Vehicle Code; MCL 257.531; MSA 9.2231].” MCL 257.1102(d); MSA 9.2802(d).

Because the accident in this case occurred prior to the October 1, 1973, effective date of the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., that act does not apply and we look to pre-nofault case law to determine whether the snowmobile that was operated on a roadway is an "uninsured motor vehicle” as defined by the Motor Vehicle Accident Claims Act. After examining the relevant authority we find that our resolution of the instant case is controlled by the opinions of this Court in Woods v Progressive Mutual Ins Co, 15 Mich App 335; 166 NW2d 613 (1968), lv den 382 Mich 754 (1969), and in Detroit Automobile Inter-Insurance Exchange v Spafford, 76 Mich App 85; 255 NW2d 780, lv den 402 Mich 825 (1977).

In Woods this Court considered the consequences of a fatal accident between an automobile and a bulldozer that was uninsured for liability. The insurance policy under which the plaintiff’s decedent was insured provided uninsured motorist protection but in defining that term excluded "a land motor vehicle or trailer if operated on rails or crawler treads”. The plaintiff brought suit for declaratory judgment but lost in the lower court. However, on appeal this Court reversed, reasoning that:

"Since a bulldozer is a self-propelled device in, upon or by which any person or property may be transported or drawn upon a highway, we conclude that a bulldozer is a motor vehicle for the purposes of the motor vehicle responsibility law and, thus, is also a motor vehicle for the purposes of the [Mjotor [Vjehicle [Ajccident [Cjlaims [A]ct. And since this is true, a bulldozer is a motor vehicle also for the purposes of the insurance code which, again, is in pari materia with the [Mjotor [Vehicle [Ajccident [Cjlaims [Ajct.” Woods, supra, 338-339. (Citation to footnote omitted.)

Subsequently, in Spafford this Court considered the same exclusionary provision of an insurance policy and addressed the question of whether a snowmobile operating off the road was a motor vehicle within the terms of the policy. There, as here, the insurer agreed to pay claims against uninsured motorists but excluded liability for "a land motor vehicle * * * operated * * * on crawler treads”. Although it held that the insurer was not liable on the facts before it, the Spafford court concluded that there were factual situations under which an insurer might be held liable for a claim against an uninsured snowmobilist:

"A snowmobile is a land motor vehicle operated on crawler treads, as well as equipment designed for use principally off the road. Indeed, snowmobiles are banned from most state roads. MCLA 257.1512; MSA 9.3200(12). In the instant case, the collision occurred off the road, and therefore, was within the contract exclusions. The exclusions are not inconsistent with MCLA 500.3010; MSA 24.13010 [this statute has since been repealed by the No-Fault Act], and hence are valid.
"Woods is not inconsistent with our holding. In that case, the bulldozer was being operated on the highway. Since it is patently ridiculous that automobile insurance would cover injuries caused by equipment designed for off-the-road operation while actually off the road, it is not surprising that the Woods Court did not make explicit what must have been an underlying assumption. The crawler tread exclusion is valid insofar as it is not inconsistent with MCLA 500.3010; MSA 24.13010; i.e., when the crawler tread vehicle is being operated off the road.” Spafford, supra, 89.

Thus, the lower court’s conclusions that the exclusionary clause in the insurance policy was invalid and that the defendant DAIIE was liable for plaintiffs’ uninsured motorist claim are correct. A snowmobile is a motor vehicle for purposes of the insurance code and, therefore, the exclusionary clause is void and a snowmobile can be an uninsured motor vehicle. The fact that there may be extensive legislation restricting the use of snowmobiles on roads and highways, see MCL 257.1501, et seq.; MSA 9.3200(1), et seq., does not alter our result. If the Legislature had intended to treat snowmobiles differently than other motor vehicles, it would have provided for such a distinction in the various motor vehicle laws previously discussed.

Affirmed. Plaintiffs may assess cost.


author: Per Curiam.

text:
    WALKER v U S EQUIPMENT COMPANY
    Docket No. 77-2640.
    Submitted November 20, 1978, at Detroit.-
    Decided July 11, 1979.
    Joseph Walker claimed worker’s compensation benefits from his employer, U. S. Equipment Company, and its insurer, Insurance Company of North America. Walker signed a redemption agreement and, at his request, the redemption hearing was held without his presence. Without the knowledge of the hearing referee, the employer, or the insurer, Walker died before the hearing from causes other than the injury for which he sought compensation. The redemption order was approved by the referee and mailed to the parties on September 27, 1976. On November 1, 1976, counsel for the employer and insurer, having learned of Walker’s death, filed for an appeal of the redemption order, alleging that the order was invalid because there had been no substitution of parties after Walker’s death. The director of the Bureau of Workmen’s Compensation ruled that because the appeal was not brought within 15 days of the date the order was mailed the bureau had no jurisdiction to hear the appeal. Upon appeal by the employer and the insurer, the Worker’s Compensation Appeal Board affirmed the director’s decision. U. S. Equipment and Insurance Company of North America appeal by leave granted. Held:

    1. The 15-day rule precludes the appeal board from examining the factual merits of a redemption order which is appealed late, but does not prevent the appeal board from setting aside a void Order. The claim that the redemption order was void was properly before the appeal board.
    2. The bureau did have jurisdiction to enter the redemption Order, and the order is not void. The statutory provision allowing for cohtinüation by a personal representative of a claim Where the claimant dies before resolution of the claim is to be construed liberally in favor of the claimant’s estate and dependants. The order may be confirmed upon proper substitution of parties.

      ReferenceS for Points in Headnotes

       82 Am Jur 2d, Workmen’s Compensation §§ 605, 622.

       73 Am Jur 2d, Statutes §§ 2*78, 279.
    152 Am Jur 2d, Workmen’s Compensation § 629.

      Remanded for further proceedings.
    1. Workmen’s Compensation — Redemption Orders — Appeal and Error — Statutes.
    A statutory rule which requires that an appeal of a worker’s compensation redemption order is to be taken Within 15 days or the order becomes final presumes the existence of a valid redemption order; the rule does not preclude review of an order on a petition for review filed later than 15 days after the order is issued where the petitioner alleges that the redemption order was void because the Bureau of Workmen’s Compensation did not have jurisdiction to enter the order (MCL 418.837; MSA 17.237[837]).
    2. Workmen’s Compensation — Death of Claimant — Statutes.
    The provision of the Worker’s Disability Compensation Act which allows a cause of action for a worker’s personal benefits to be continued by the worker’s personal representative where the worker dies prior to resolution of his claim is remedial in nature and is to be liberally construed in favor of the estate and dependants of the worker (MCL 418.375[3]; MSÁ 17.237[375][3]).
    3. Workmen’s Compensation — Death of Claimant — Substitution of Parties.
    A worker’s compensation redemption award made witbmit the substitution of a personal representative where the injured worker dies prior to the making of the award is not void but can be confirmed by the worker’s estate upon the proper substitution of parties.

      Gittleman, Paskel', Tashtiian, Ross & Linden, for plaintiff.

      Conklin, Benham, McLeod, Ducey & Ottaway, P>C. (by Martin L. Critchell), for defendants.
    Before: D. C. Riley, PJ., and Bronson and T, Gillespie, JJ,

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

   Per Curiam.

Defendants appeal by leave granted an order of the Worker’s Compensation Appeal Board affirming the decision of the director of the Bureau of Workmen’s Compensation that the bureau had no jurisdiction to review the redemption order entered in this case.

On August 6, 1976, plaintiff signed an agreement to redeem defendant employer’s liability arising out of plaintiff’s compensation claim. On August 9, 1976, plaintiff signed an affidavit requesting that the redemption agreement be approved by the bureau despite the fact that he would be unable to attend the redemption hearing due to his hospitalization.

On September 11, 1976, plaintiff died from causes unrelated to the injury for which he sought compensation. Because no one else involved in the case was aware of this development, no substitution of parties was made, and the redemption order was approved by the hearing referee on September 22, 1976, and mailed to the parties on September 27, 1976.

On October 20, 1976, defendants first learned of plaintiff’s death. On November 1, 1976, counsel for defendants filed for a delayed appeal of the redemption order on the ground that since plaintiff had died before the order was approved, and since there had been no substitution of parties, the bureau did not have jurisdiction to enter the award and therefore the award was invalid.

Relying on MCL 418.837; MSA 17.237(837), the director of the Bureau of Workmen’s Compensation held that because no appeal was taken within 15 days from the date the redemption order had been mailed to the parties, the bureau had no jurisdiction to hear defendants’ claim. The Worker’s Compensation Appeal Board agreed with the director and affirmed.

Although a redemption order becomes final when not appealed within the 15-day period, it does not necessarily follow that the bureau is without authority and jurisdiction to review any such order. Defendants did not merely allege that there was a mistake in the order or that the order was erroneous. Instead, defendants’ allegations went to the very heart of the bureau’s authority to issue the order. The board agreed that the order could be reviewed, but stated that the review should be pursued in the courts and not with the board. We disagree. There is no justification for requiring a party to climb a useless appellate ladder within the bureau merely to preserve its claim to direct review by this Court or to undertake instead the burdensome task of collateral attack in the circuit court in order to obtain relief from an order which is allegedly totally invalid. The 15-day rule contained in MCL 418.837; MSA> 17.237(837) presumes the existence of a valid order. Although the rule precludes the board from examining the factual merits of the redemption order, it does not prevent the board from setting aside a void order. Therefore when a party alleges in its petition for review that the redemption order was void because the bureau did not have jurisdiction to enter the order, the board may review the order notwithstanding the 15-day rule.

Since defendants alleged the redemption order was invalid for want of jurisdiction, the claim was properly before the board. However, upon reaching the merits of the dispute, we find that the bureau had jurisdiction to enter the order and therefore the order is not void. We make this determination based upon the history of the Worker’s Disability Compensation Act.

Under former workmen’s compensation practice, it was said that a worker’s claim died with him. Therefore, if the worker had a job-related injury entitling him to compensation, but died before the bureau had made a final determination of his entitlement, the claim was extinguished and neither his estate nor dependents could recover, on the worker’s behalf, the benefits which would have been payable to the deceased worker from the date of his injury to the time of his death. E.g., Holtz v B F Keith Detroit Corp, 276 Mich 72; 267 NW 789 (1936), Stone v Smith, 275 Mich 344; 266 NW 374 (1936).

Naturally, a rule which denied recovery of a worker’s valid claims based on no more than the fortuitous timing of the worker’s death gave the insurer a windfall at the expense of the worker’s dependents and estate who had a legitimate interest in collecting and distributing all money owed to the deceased worker. This rather inequitable result was remedied by the Legislature with the enactment of MCL 418.375(3); MSA 17.237(375)(3), which declared that the cause of action for the worker’s personal benefits did not die with him, but "may be continued in the name of his personal representative”.

This history demonstrates clearly that the provision is remedial in nature and as such is to be construed liberally in favor of the persons intended to be benefited by the statute, see 3 Sutherland, Statutory Construction, § 60.01, p 29, i.e., in favor of the estate and dependents of the worker. The defendants’ interpretation would not accomplish this result.

During his lifetime, the worker has complete control over his claim for compensation and its settlement. MCL 418.341; MSA 17.237(341). The naming of a personal representative as provided for in MCL 418.375(3); MSA 17.237(375X3) is a device to accommodate the transfer of complete control over the litigation and settlement process from the employee to his estate. Since the naming of a personal representative is for the benefit of the dependents and heirs of the worker in order to allow them approval over any settlement, the persons hurt by the failure to name the representative and thus the only ones who can complain about the failure are the dependents and heirs themselves. It would be anomalous to allow the insurer to invalidate an award in favor of the worker on the ground that there was a technical violation of a provision designed for the benefit of the worker’s estate. Therefore an award made without the substitution of a personal representative is not void, but can be confirmed by the worker’s estate upon the proper substitution of parties.

This action is remanded to the Workmen’s Compensation Bureau for substitution of parties. See Cruz v Chevrolet Grey Iron Div of General Motors Corp, 398 Mich 117, 126; 247 NW2d 764 (1976), reh den 399 Mich 1041 (1977). Upon the substitution of the personal representative and the representative’s approval of the settlement reached in the redemption order, the award will be payable tó the worker’s dependents, MCL 418.375(3); MSA 17.237(375X3) and MCL 418.321; MSA 17.237(321), or if there are no dependents, then to the worker’s heirs. Siebert v Northport Point Cottage Owners’ Ass’n, 378 Mich 661; 148 NW2d 790 (1967).

Remanded.

       "(1) The director shall direct the processing for approval or rejection by the hearing referees of all redemption agreements and lump sum applications filed under the provisions of section 835.
      "(2) The director may, or upon the request of any of the parties to the action shall, review the order of the hearing referee entered under this section. Unless review is ordered or requested within 15 days of the date the order of the hearing referee is mailed to the parties, the order shall be final. In the event of review and in accordance with such rules as the director may prescribe and after hearing, the director shall enter such order as he deems just and proper. Any such order of the director may be appealed to the board within 15 days after the order is mailed to the parties.”

       This statute is an almost verbatim reenactment of former MCL 412.12; MSA 17.162.


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

text:
    PEOPLE v MOSELEY
    Docket No. 78-3390.
    Submitted March 6, 1979, at Detroit.
    Decided July 27, 1979.
    Robert D. Moseley was charged with and convicted of larceny of property with a value in excess of $100. At trial, prior to defendant taking the stand, the prosecution announced its intention to present evidence of defendant’s three prior larceny convictions for impeachment purposes. Over defense objections that evidence of these prior convictions for the same type of offense for which defendant was then on trial would create prejudice which outweighed the probative value, the Genesee Circuit Court, Thomas C. Yeotis, J., ruled that the prosecution could impeach defendant by use of evidence establishing the prior convictions. The prosecution presented evidence with respect to two of the three prior convictions, voluntarily choosing not to present evidence as to the third conviction because there was a question whether the larceny underlying the third conviction would have been a felony in Michigan. Defendant appeals. Held:

    1. Although impeachment of a criminal defendant by evidence of prior convictions for the same type of crime as that for which defendant is on trial is not absolutely prohibited, the trial court must be sensitive to the special problems associated with such evidence and must exercise its discretion in determining whether to admit such evidence. Since there were in the present case other less prejudicial alternatives, such as showing only one conviction or showing that defendant had felony convictions of an unspecified nature, it was an abuse of discretion on the part of the trial court to permit impeachment of the defendant by the use of evidence of two of defendant’s prior felony convictions for larceny.
    2. Any error arising from the admission for impeachment purposes of evidence of defendant’s prior felony convictions for larceny was harmless error, since the evidence was so overwhelming that, even absent the erroneously admitted evidence, defendant would not have been acquitted.

      Refekences for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320, 321.

       29 Am Jur 2d, Evidence § 253.

       5 Am Jur 2d, Appeal and Error §§ 778, 798.

      Affirmed.
    N. J. Kaufman, P.J., concurred in the result reached by the Coqrt, but for slightly different reasons than those expressed by the Court. He would hold that the admission of the evidence for impeachment purposes was not error, since there was no indication that the trial court failed to consider all relevant factors in the exercise of its discretion.
    Opinion of the Court
    1. Criminal Law — Evidence — Impeachment Evidence — Suppression of Evidence — Prior Criminal Record.
    Impeachment of a criminal defendant by evidence of prior convictions for the same type of crime as that for which defendant is on trial is not absolutely prohibited; rather, the trial court must be sensitive to the special problems associated with the use of evidence of prior convictions for the same type of offense and must exercise its discretion in determining whether to admit such evidence.
    2. Criminal Law — Evidence — Impeachment Evidence — Prior Criminal Record — Abuse of Evidence.
    It is an abuse of discretion for a trial court to permit impeachment of a criminal defendant by the use of evidence of two prior convictions for crimes which are essentially similar to the crime for which the defendant is on trial where other less prejudicial alternatives, such as showing only one conviction or showing that defendant had felony convictions of an unspecified nature, exist.
    3. Criminal Law — Evidence — Prior Criminal Record — Harmless Error.
    Error in the admission for impeachment purposes of evidence of a criminal defendant’s prior convictions for crimes similar to the crime for which defendant is on trial is harmless error where the evidence against defendant is overwhelming.
    Concurrence by N. J. Kaufman, P.J.
    4. Criminal Law — Evidence —■ Impeachment Evidence — Prior Criminal Record — Admission of Evidence.

      Admission, for the purpose of impeachment, of evidence of a criminal defendant’s prior convictions for crimes similar to the crime for which defendant is on trial does not constitute

      reversible error where there is no indication that the trial court failed to consider all relevant factors in the exercise of its discretion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      Douglas J. Callahan, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and T. M. Burns and R. M. Maher, JJ.
   Per Curiam.

Defendant appeals by right from his jury trial conviction for larceny of property with a value in excess of $100. MCL 750.356; MSA 28.588. The only issue raised concerns the prosecution’s use of defendant’s prior convictions to impeach his trial testimony.

Before defendant took the stand, the prosecutor announced his intention to show three prior larceny convictions for impeachment purposes. Defense counsel argued that to allow impeachment by evidence of convictions for the same crime for which defendant was on trial would be more prejudicial than probative. Defendant’s view was that it would be impossible for the jury not to infer from the evidence of prior convictions that defendant was more likely to have committed the present offense, an inference which is impermissible as a matter of law. The trial court ruled in favor of the prosecution, and the prosecutor inquired about two of the prior convictions in cross-examination. The trial court gave the standard instruction on impeachment by prior convictions in its charge to the jury. CJI 3:1:08.

Although impeachment through showing a prior conviction for the same type of crime as that for which defendant is on trial is not absolutely prohibited, People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975), this type of evidence presents special problems, and trial courts must be sensitive to them. A failure to properly consider the dangers to the fact finding process has caused reversal in several recent cases.

In People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), the Supreme Court reversed the conviction because the trial court weighed the similarity of the prior conviction and the charged offense as a factor in support of admission of this evidence, rather than as a factor pointing to exclusion. In People v Bennett, 85 Mich App 68; 270 NW2d 709 (1978), a majority of the panel found a reversible abuse of discretion where the trial court allowed impeachment by evidence of two similar prior offenses when impeachment by other nonsimilar crimes was thought to be sufficient. In People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), this Court reversed because the trial court abused its discretion by refusing to suppress evidence of prior convictions where the trial court recognized that its decision would result in the prohibited inference or in a decision by defendant not to take the stand.

Based on these authorities, we have no doubt that it was error to allow the prosecution to present evidence as to the two prior convictions for essentially the same conduct for which defendant was on trial. Other, less prejudicial, alternatives existed, such as: showing only one conviction, or showing only that defendant had previous felony convictions of an unspecified nature.

In this case, however, the error was harmless. See, People v Stein, 90 Mich App 159; 282 NW2d 269 (1979). Given the overwhelming evidence against defendant, we cannot envision a single juror voting to acquit even if the error had not occurred. Defendant was apprehended immediately after the theft. Because of prior losses, the store security people were watching, and defendant was positively identified by several witnesses.

Affirmed.

N. J. Kaufman, P.J.

(concurring). I concur in the result reached by the majority, but do so for slightly different reasons.

The majority correctly note that impeachment by evidence of prior convictions which are similar to the crime for which defendant is on trial is not absolutely prohibited. People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975). A trial court is only required to exercise its discretion in light of the guidelines established in Jackson, supra, 333, in determining whether or not to permit the impeachment.

In the instant case, the trial judge exercised his discretion before permitting the prosecutor to use evidence of the prior convictions to impeach the defendant. Since there is no indication that he applied the Jackson tests in an improper manner, I am not prepared to say that the use of evidence of the two similar convictions is error, while the use of evidence of one similar conviction is not.

I agree, however, that if there was error in this case, it was harmless.

       The third larceny conviction had resulted from a prosecution in Illinois, and it was unclear whether that offense would have been a felony in Michigan. The trial court did not exclude this crime, but rather the prosecutor voluntarily chose not to use it.