People v. Wilde, Docket No. 12127

• Decision Date: 29 August 1972
• Docket Number: No. 1,Docket No. 12127,1
• Citation: 202 N.W.2d 542,42 Mich.App. 514
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles WILDE and Michael Buskirk, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 542

202 N.W.2d 542

42 Mich.App. 514

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles WILDE and Michael Buskirk, Defendants-Appellants.

Docket No. 12127.

Court of Appeals of Michigan, Division No. 1.

Aug. 29, 1972.

Released for Publication Dec. 8, 1972.

Donald F. Welday, Jr., Southfield, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and McGREGOR and BRONSON, JJ.

BRONSON, Judge.

Defendants were convicted by jury verdict of obtaining money under false pretenses in violation of M.C.L.A. § 750.218; M.S.A. § 28.415. Each defendant was sentenced to one year probation, fined $150 and ordered to pay $60 in restitution for this offense constituting a misdemeanor.

The defendants challenge their conviction upon the basis that the people failed to prove the requisite elements of the offense charged. They claim that (1) 'overcharging' is insufficient to constitute a false pretense and (2) the false pretense statute is not violated unless the victim relies thereon to his detriment. The unique facts precipitating these arguments are as follows.

On October of 1970 Ronald Riehs took his 1967 Imperial to the Do-Right Collission Shop operated by defendants for a repair estimate of damage to the right rear quarter panel resulting from an automobile accident. During discussions with defendant Wilde concerning the estimate, Riehs inquired into the cost of repainting the entire car to eliminate the problem of matching paint as an extra expense. When Riehs remarked that the quoted price of $125 was too high, Wilde suggested that Riehs secure a 'cooperative' insurance adjuster to include this cost in his estimate for the insurance claim. Since Riehs was insured by the Detroit Automobile Inter-Insurance Exchange (AAA), Wilde suggested the name of one Pineau, a 'cooperative' AAA agent.

Riehs was currently employed by AAA as a field representative in the Road Service Department and informed his supervisor of Wilde's proposal. This information was thereafter forwarded to the assistant manager of Riehs' department who relayed it to the Regional Exchange Manager responsible for the area in which defendant's shop was located. Prior to Riehs' automobile being sent to defendant's shop for the actual repair work, this regional manager inspected the car at Riehs' home and prepared his own estimate, which totaled $202.61. Thereafter Riehs' car was taken to defendant's shop where a formal repair estimate for submission to AAA was prepared by its agent Pineau which totaled $622.33. The disparity between those two estimates reflected excessive charges pursuant to an agreement between defendants and Pineau in which Pineau would inflate the estimates in return for a 'kickback' in addition to providing a means in which the cost of the paint job could be hidden. Moreover, Pineau's estimate included a $60 charge to repair the trunk lid although no such damage was found by the regional manager during his examination or included in his estimate. AAA proceeded to pay the amount contained in Pineau's estimate facilitating the repair of Riehs' car, after which Pineau pled guilty to the crime of false pretenses and was discharged. These events precipitated defendants being similarly charged and ultimately convicted.

Defendants' first allegation of error is that the evidence revealed only a case of 'overcharging' which was not considered an element of the crime of false pretenses by this Court in People v. Marks, 12 Mich.App. 690, 163 N.W.2d 506 (1968). Although the elements of the offense at issue were not enumerated by the Marks Court, they are considered by Michigan authorities to be as follows: (1) the intent to defraud, (2) the false pretense, and (3) the fraud accomplished. People v. Wakely, 62 Mich. 297, 28 N.W. 871 (1886); People v. Summers, 115 Mich. 537, 73 N.W. 818 (1898); People v. Johnson, 190 Mich. 170 156 N.W. 449 (1916); People v. Lee, 259 Mich. 355, 243 N.W. 227 (1932); People v. Bagwell, 295 Mich. 412, 295 N.W. 207 (1940). ¹

The Marks Court did not find an 'overcharge' to fall within these elements since they require a fraudulent misrepresentation and 'a gross overcharge does not constitute a fraudulent misrepresentation'. ² The facts precipitating this conclusion indicate the defendant charged a 73-year-old spinster $600 for work to her chimney which possessed a true value of $25. Thus, the Marks Court reversed the defendant's conviction of obtaining money under false pretenses, finding that his reprehensible conduct of 'overchanging' fell outside the statute.

Unlike Marks, in which the overcharge was for completed work, the present defendants use inflated estimates upon which others may rely prior to the work being initiated. The issue raised by defendants of whether this conduct constitutes an 'overcharge' or a false pretense requires a careful examination of the Marks decision.

The defendant's conduct in Marks was considered reprehensible because it involved a misrepresentation of the value of the services rendered. Yet, the Marks Court did not find such a misrepresentation sufficient to be fraudulent and violate the statute. The reason underlying this variance can be found in the distinction between opinions and facts. The defendant's misrepresentation of value in Marks merely involves an inflated opinion as to the value of his services. Each citizen is capable of protecting himself since he is placed upon notice that the representation is based upon an opinion which is subject to distortion or deceit. As offensive as cases involving people being duped by gross misrepresentations of value may be, the Legislature has failed to make such chicanery a crime. Thus, the label 'overcharge' is applied to those cases involving indefensible departures in a person's opinion of the value of his services from the established standard.

Misrepresentations of fact, on the contrary, offer an area for abuses in which the State should enter. Persons relying upon misrepresentations of fact are no longer placed upon notice that the inducement is subject to the speaker's whim or caprice since they are regarded as truths. The confidence placed in alleged facts and the diminished ability of people to protect themselves against fabricated facts require criminal sanctions to diminish the number of frauds. This distinction between misrepresentations of opinion and fact ³ provide the vehicle for distinguishing between 'overcharges' and false pretenses.

The repair estimates at issue which were used to procure insurance payments clearly contained an element of misrepresentation. The estimates containing inflated prices for necessary repair work fall within the opinion category involving misrepresentations of value. Since the present case was not limited to these circumstances, we cannot sustain defendants' contention. The people offered testimony that the repair estimates at issue included a $60 charge for non-existent repair work to Rieh's trunk lid. This conduct, if true, involves a misrepresentation of fact upon which the charge of false pretenses could be sustained. In light of this testimony we cannot as a matter of law find that defendants were engaged in 'overcharging'. Such conflicting evidence creates a factual dispute whose resolution is exclusively a jury function. People v. Miller, 301 Mich. 93, 3 N.W.2d 23 (1942); People v. Hudson, 386 Mich. 665, 194 N.W.2d 329 (1972); People v. McIntosh, 6 Mish.App. 62, 148 N.W.2d 220 (1967). ⁴ We may not invade the province of the jury and reach a contrary conclusion. People v. Moshier, 306 Mich. 714, 11 N.W.2d 300 (1943); People v. Paugh, 324 Mich. 108, 36 N.W.2d 230 (1949).

Defendant's second allegation of error is that AAA's knowledge that the pretense was false negated the reliance necessary to substantiate the crime charged. Finding reliance an integral part of this offense, we agree. Although the above authorities enumerating the elements of the offense did not specifically include reliance, it is encompassed by the phrase 'the fraud must be accomplished'. The accomplishment of a fraud inherently possesses a measure of reliance by the victim. The Court in Higler v. People, 44 Mich. 299, 302--303, 6 N.W. 664, 665 (1880), recognized the importance of this component by stating:

'And if in any case the existence of any particular fact would be likely to beget confidence, there is no reason why a false assertion of its existence should not be a criminal pretense, as much as would be a false assertion of pecuniary responsibility, Provided, it is equally relied upon, and Equally effectual to accomplish the fraud designed.' ⁵ (Emphasis added.)

Similarly, the Court in People v. Larco...