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Fellows, J. Plaintiff files this bill against the director of conservation to quiet title to a strip of land several hundred feet in width between the meander line and the present waters of Saginaw Bay, a part of Lake Huron. It is his claim that he owns the fee by reason of accretion and reliction, and that such title has been assailed by the defendant, who asserts that the title is in the State in trust for its people. From a decree dismissing his bill and sustaining defendant’s contention, he appeals. It is suggested rather than insisted upon by the attorney general, that plaintiff has not established title to the fast land. But upon the hearing in the court below plaintiff’s counsel put in evidence the abstracts of his title, and it was conceded that he had title, to the meander line. The abstracts have been filed with the other exhibits in this court. We shall accept the concession, and assume plaintiff’s title to the meander line to be unassailable. The strip involved has been platted into lots, is known as Aplin beach, and the lots have been leased to various parties who have erected cottages and who pay rent to plaintiff. The trial judge found the strip was the result of accretions, but we are satisfied from the record, and the facts of which we take .judicial notice, that it was formed by both accretions and reliction, the latter being the most potent. Saginaw Bay is very shallow at the shores, and but slight recession of the water uncovers a large area. The main question in the case, whether plaintiff has title in fee to the locus in quo and may put it to such legitimate use as he desires, is to be solved by the further question of whether we should at this time overrule Kavanaugh v. Rabior, 222 Mich. 68. That case of ejectment involved a portion of the disputed strip, was brought by the present plaintiff upon the same claims here asserted, and defended by a private individual upon the same ground here defended by the State. That case is not res adjudicaba of the present case, as claimed by defendant; th'e parties are not the same, nor are they privies, but that case did decide the questions here involved, and necessarily involved, and unless we are prepared to overrule it, it is controlling. It was there held that the title to the strip of land between the meander line and the then waters of the bay, which this record discloses has materially increased since the trial of that case, being a part of the lake bottom of Lake Huron at the time the State was admitted into the Union, passed to the State in trust for its people. The language there and here controlling in addition to the recognition of the trust doctrine in the bottoms of the Great Lakes was and is the following language of Mr. Justice Bird, speaking for the unanimous court: “When the meander line was established it fixed the status of the disputed strip as lake bottom, and this status in the law would not change even though a portion of it had become dry land.” If the title to the lake bottom passed to the State in trust upon its admission to the Union, and that title did not shift and change with the shifting and changes in conditions, and we so held in that case, then the title to the property here in question is in the State in trust, and is not in the plaintiff, and to sustain the plaintiff’s contention necessitates the overruling of the Rabior Case and the cases which have preceded it. The so-called “trust doctrine,” as applied to the Great Lakes, is now recognized beyond question by this court. While its applicability to inland waters has not received unanimous approval (see Collins v. Gerhardt, 237 Mich. 38), I do not understand that its applicability to the Great Lakes is questioned by any member of this court. But it has been a matter of slow growth. General language recognizing it will be found in opinions, but the subject was not considered in detail and the reasons upon which it was bottomed pointed out until Mr. Justice Hooker wrote his exhaustive opinion dealing with the subject in State v. Fishing & Shooting Club, 127 Mich. 580. No one signed with Mr. Justice Hooker, but he again wrote in Olds v. State Land Commissioner, 134 Mich. 442, adhering to his former views. On rehearing of this case an issue was framed and the case again came before the court in Olds v. Commissioner of State Land Office, 150 Mich. 134. Mr. Justice Montgomery, who wrote the prevailing opinion, did not go as far as Mr. Justice Hooker’s views, as expressed in the Fishing & Shooting Club Case, and Mr. Justice Hooker concurred in the result reached in a short opinion. But Mr. Justice Hooker lived to see his views become the holding of the court in the unanimous opinion in State v. Venice of America Land Co., 160 Mich. 680, which we shall now consider. Our Reports will disclose that, covering a number of years, the State was involved in litigation concerning the St. Clair Flats. Each case had been decided upon the record as made in that particular case, and as a result there had not been such a finality of decision as fixed the State’s title and its rights once and for all. Private parties were occupying, and seeking the right to occupy, this valuable territory for little or no consideration. The State, of course, desired that its title and rights be fixed by a decision that would be a finality, not only as to the case in hand but for all time and for territory of a similar character. The Venice of America Land Company had platted a vast territory on the Flats and had advertised it for sale to the public in defiance of any rights of the State. Thereupon the State filed its bill. A large amount of testimony was taken. It appears in the two volumes of record in that case. The case was exhaustively briefed; the briefs filed aggregating 336 pages. The State realized that, to maintain its bill, it must satisfy the court as a fact that the territory was lake bottom at the date the State was admitted into the Union, and it must satisfy the court as matter of law that the State then took title in its sovereign capacity in trust for its people, and that the conditions then existing were controlling for all time. This it succeeded in doing. The court found that the locus in quo was lake bottom at the time the State was admitted into the Union, it applied the trust doctrine, and in one terse sentence sustained the contention that conditions at the date of the admission of the State into the Union controlled. Mr. Justice Stone, speaking for the court, said: “The condition of this territory when the State was admitted into the Union is the condition which must control. That the State of Michigan holds these lands in trust for the use and benefit of its people-^if we are correct in our conclusion — cannot be doubted. The State holds the title in trust for the people, for the purposes of navigation, fishing, etc. It holds the title in its sovereign capacity.” We shall have occasion to refer to this case later. Following this decision, the legislature passed a comprehensive act for the leasing and control of lands of this character (Act No. 326, Pub. Acts 1913 [1 Comp. Laws 1915, § 606 et seq.]). It has been amended from time to time (Act No. 12, Pub. Acts 1917 [Comp. Laws Supp. 1922, §§ 610, 616, 630] ; Act No. 382, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 616] ; Act No. 48, Pub. Acts 1923). Its validity was upheld in Nedtweg v. Wallace, 237 Mich. 14. This court, irrespective of what other courts have held, and irrespective of what textwriters have said, is committed to the trust doctrine as applied to lake bottom lands in the Great Lakes. We shall not again review the authorities sustaining that doctrine. Mr. Justice Hooker reviewed them exhaustively in State v. Fishing & Shooting Club, supra, and the writer considered them at some length in Collins v. Gerhardt, supra. But long before the Venice of America Land Company Case, and in 1888, it was held by this court in Sterling v. Jackson, 69 Mich. 488 (13 Am. St. Rep. 405), that the title to shore lands on the Great Lakes did not change with a change in conditions. The reverse of the present situation was then before the court. There the land had been inundated by navigable water. Plaintiff Sterling had obtained a patent from the State of lands adjoining Lake Erie, which lands were granted to the State under the act of congress of September 28, 1850, commonly known as the “swamp land act.” Their character had in the meantime materially changed, and at the time of the alleged trespass they were covered by water navigable in fact, and navigation over them was common. Mr. Justice Campbell pointed out, in his dissenting opinion, that for 32 years the locus in, quo had been “open water.” Mr. Justice Champlin, who wrote the prevailing opinion, recognized that this fact constituted an implied license to the use by the public of the navigable waters, but held that, when such license was revoked by the owner of the fee, the action could be maintained by such owner for a trespass thereafter committed and it was held (quoting from the syllabus) : “Lands lying in the State of Michigan which belonged to the United States at the date of the passage of the act of September 28, 1850, and which came within the class of swamp and overflowed lands referred to in that act, became the property of the State of Michigan, and any change in the condition of such lands afterwards from natural causes, whether they become dryer or more overflowed, could not deprive the State of its title to such lands.” * * * Plaintiff’s counsel urge that People v. Warner, 116 Mich. 228, sustains their contention. Language will be found in the opinion in that case having such tendency. But we must consider what was then before the court and what was then decided. To aid us we have examined the record and briefs in that case. The action was ejectment. The trial judge had directed a verdict for the plaintiff. So that defendant was entitled to the most favorable consideration of the testimony. Among the contentions of defendant and one very strongly urged was that he as riparian owner was entitled to access to navigable water, and that it was unimportant whether the stretch of relicted land was much or little. The brief of defendant’s counsel cites and considers many of the authorities here cited by plaintiff’s counsel. We quote from that brief: “Following this doctrine I contend that my client being the owner of an island, has the right to a shore entirely around it fronting upon navigable waters, on which if he should see fit he could construct landings, wharfs or piers for his use of such island. * * * “A principle must be established, and that principle must be founded upon reason. The reason that permits one to pass a meandered line is a plain one. We are entitled to go to the navigable water. If it can be said that when the lands lying between the meandered line and navigable waters amount to 600 or 800 acres the rule will not obtain, then there is no reason for the rule, and the meandered line should govern in all cases. “I trust that the specious argument made by counsel for the plaintiffs in the circuit court in this respect will have no force in this court.” In considering this contention, it was said by Mr. Justice Hooker, speaking for the court: “It is contended that the defendant Warner, as littoral proprietor, has a right of access to navigable water to the eastward of Maisou. If this is true (which we do not intimate), it is merely a right to use the intervening land for the purpose, which does not interfere with the rights of the public, and does not support a right to take full possession, and exclude both the State and the public from a large area of land and water, under a claim of title in fee.” We shall presently consider the question of plaintiff’s right to reach navigable waters, but the opinion in the Warner Case must be accepted as holding that such rights do not carry to the riparian owner the fee to the intervening land as against the State. We shall not be able within the compass of this opinion to discuss all or any considerable number of the cases from other jurisdictions which have been cited to us by plaintiff’s counsel. It is but fair to state that we have spent weeks in the consideration of this case, and we have not found any cases in this country or in England favorable to plaintiff’s claim which had not already been garnered by his counsel and submitted to us in their briefs. We should, however, consider some of the cases from other States in which the State was a party and asserting its rights. Three recent cases especially should be considered, as they were cases in which the attorney general appeared in behalf of the State. The opinions in these cases are exhaustive. In State v. Railroad Co., 94 Ohio St. 61 (113 N. E. 677, L. R. A. 1917A, 1007), the attorney general sought to restrain the defendants from using the subaqueous lands in the harbor at Cleveland on Lake Erie for dockage and wharfing facilities. The defendants conceded that the title to the subaqueous lands was in the State in trust, but claimed that they had the right to use them for wharfing out and dockage purposes, that this was an aid to commerce and did not interfere with navigation, that the Federal authorities had fixed a harbor line beyond which defendants had not extended their wharves and docks. It will, therefore, be noted that defendants did not claim the fee, but only the right of wharfing out. The court denied relief to the State. It is doubtful if this court on a similar record would have reached a different result. It should be noted that the Ohio court expressly recognized the trust doctrine, and said: “The State as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created. “If it is once fully realized that the State is merely the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use, a clearer view can be had. “An individual may abandon his private property, but a public trustee cannot abandon public property. Mere nonuser of the trust property by the public cannot authorize the appropriation of it by private persons to private uses and thus thwart the purposes of the trust.” Brundage v. Knox, 279 Ill. 450 (117 N. E. 123), both in the language used in the opinion and in the result reached unqualifiedly sustains plaintiff’s contention. The suit was instituted by the attorney general on behalf of the State and the land in question was beyond the meander line of Lake Michigan. Doemel v. Jantz, 180 Wis. 225 (193 N. W. 393, 31 A. L. R. 969), also sustains plaintiff’s contention. It was litigation between private parties, in which the attorney general, by leave of the court, was permitted to intervene. But it did not involve the beds of the Great Lakes. The lake was an inland one, and the locus in quo was the strip between high and low water. In the earlier case of Lamprey v. State, 52 Minn. 181 (53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541), the State was made a party because of its claim of an interest in the bed of a small inland lake which had become dry land. The court denied the right of the State, and held the title to be in the riparian owner. In the later case of State v. Korrer, 127 Minn. 60 (148 N. W. 617, L. R. A. 1916C, 139), the public was likewise a party. The right to mine iron ore under the waters of a small inland lake was involved. It was held that the riparian owner had title to the ore under the strip between high and low water mark and could exercise such right when the water was at low water mark. But in none of these cases, nor in others where the public was interested, was the claim made, or at least passed upon, that on the day of its admission into the Union the State acquired its title in trust, and that such title was neither lost nor enlarged by the changes in conditions occurring from year to year. The courts all seem to be impressed with the value of the right of the riparian or littoral owner to reach navigable waters. Thus, in Brundage v. Knox, supra, it was said: “This right is not mainly based, as argued by counsel for appellant, upon the right to the title to the submerged lands, but largely, if not chiefly, upon the right of access to- the water, otherwise the owners of lands along Lake Michigan might, by losing their frontage by accretion, be debarred of valuable rights for which there would be no adequate redress.” And in Lamprey v. State, supra, it was said: “But it seems to us that the rule rests upon a much broader principle, and has a much more important purpose in view, viz., to preserve the fundamental riparian right — on which all others depend, and which often constitutes the principal value of the land — of excess to the water. “The incalculable mischiefs that would follow if a riparian owner is liable to be cut off from access to the water, and another owner sandwiched in between him and it, whenever the water line had been changed by accretions or relictions, are self-evident, and have been frequently animadverted on by the courts.” This right of access to navigability is a valuable right and should be protected, but this court did not find it necessary in the Warner Case to hold that the fee to the soil passed to the littoral owner in order to protect such right, and we are clearly of opinion that we should differentiate between the right of access to navigability on the Great Lakes and the right to the fee of that which was subaqueous lands when the State was admitted into the- Union and the title to which passed to the State in trust on that day. Counsel have cited us to numerous decisions holding that the riparian owner takes title or at least a qualified title to low water mark, and holding that the meander line is not controlling as a boundary but only for the purpose of fixing the acreage. In the main, these cases involve inland lakes and streams. Counsel, however, stress La Porte v. Menacon, 220 Mich. 684. That case involved the construction of the word “shore” in a contract which we found the parties had themselves construed. But we entertain no doubt on this record and upon the facts of which we take judicial notice that the meander line correctly delineated the boundary between the water and1 fast land at the time it was run. One of plaintiff’s exhibits, a government document, establishes that in 1838 the level of Lake Huron was 584.68. This was the year after the State was admitted into the Union and the year before the survey of the land in this part of the State began. The testimony quoted in the Venice of America Land Company Case shows that 1837 and 1838 were years of high water, the culmination coming in 1838, the year before the survey began. At but one point on the map prepared by plaintiff’s surveyor for use in this case, and which shows present conditions, does the land at the meander line exceed the figure given of the level of Lake Huron in 1838, and the plaintiff’s testimony all shows that silt, bark, and other material have been washing in for years. We also take judicial notice that for some years the waters of the Great Lakes were receding. Indeed, the Venice of America Land Company Case demonstrates that the waters of the Great Lakes rise and fall over a cycle of years. It would be of little avail to plaintiff to hold that he took title to low water mark unless we also hold that he took title to the present low water mark. There is no testimony showing where the low water mark was in 1837, and accepting all plaintiff’s claims for the variation between high and low water mark, it is patent that the cottages erected by plaintiff’s lessees are below the low water mark of 1837. However, Mr. Justice Grant, speaking for the court in Ainsworth v. Hunting & Fishing Club, 159 Mich. 61, said: “It is the established law of this State that riparian owners along the Great Lakes own only to the meander line, and that title outside this meander line, subject to the rights of navigation, is held in trust by the State for the use of its citizens.” Brown v. Parker, 127 Mich. 390, involved rights under a patent issued pursuant to the swamp land act to lands on Lake Erie. Speaking for the court, it was said by Mr. Justice Hooker: “We are of the opinion that the survey of the government, and transfer to and sale by the State to the meander lines, as State swamp land, conclusively establish the boundaries of the lake, and that title of abutting proprietors extend to them upon the presumption that must be conclusive, i. <?., that when the meander lines were run they followed the true shore of the lake.” To overrule the Rabior Case would require us to overrule Sterling v. Jackson, supra, State v. Venice of America Land Co., supra, and probably Ainsworth v. Hunting & Fishing Club, supra, Brown v. Parker, supra, and the cases which have followed them. To overrule these cases would be to turn over to private ownership hundreds of thousands of acres of land which the recent low waters in the Great Lakes have uncovered and which form a fringe around our great inland seas and exclude the public from any beneficial use of them. These holdings may be out of line with the holdings in other jurisdictions. They may be out of line with the writings of textwriters and the decisions of other courts. We may concede them to be against the overwhelming weight of authority, but we should not overrule them for this reason when the effect would be to produce such staggering results. They have fixed a rule of property for this State. True, the property is public property, but that does not alter the reason for the rule. The property is held in trust for the use and benefit of over four millions cestuis que trusient, and they are entitled to the enforcement of the doctrine of stare decisis. In so far as the decree fixes the title to the land in question in the State in trust for its people, it will be affirmed. Changes in condition from year to year do not change .the title or rights of the State. They are fixed as of the date of the admission of the State into the Union. So, likewise, are the rights of the riparian owner. When the State was admitted into the Union the lands here bordering on Saginaw Bay were owned by the Federal government. It held them as proprietor and when it sold, the right of a riparian owner as of that date passed to its grantee. The authorities in this State and others all agree that the paramount right of the riparian owner on navigable waters is the right of access to navigable waters; the right to wharf out to navigability so long as he does, not interfere with navigation has long been recognized as valuable and of which he cannot be deprived. He has other rights in waters adjoining his land. He may bathe in them (People v. Hulbert, 131 Mich. 156 [64 L. R. A. 265, 100 Am. St. Rep. 588]), water his stock, withdraw water for domestic purposes. Other rights will suggest themselves. We are here dealing with the rights of the State in the waters of the Great Lakes as against the rights of the riparian owner, and what is here said, of course, applies only to the question before us. Upon the Great Lakes the right of the riparian owner to erect docks, to wharf out to navigability, is not only valuable to the riparian owner but an absolutely necessary aid to navigation. Without wharves and docks built by riparian owners commerce on the Great Lakes would come to an end. This right to reach navigable waters for all lawful purposes extends from the meander line to such navigable waters even though the intervening space is now by accretion and reliction dry land, and the State cannot put such dry land to any use that will infringe such rights. The decree should be modified to protect such rights.. But one other question requires consideration. It is insisted that to hold that plaintiff is not entitled to the fee of this strip of land would infringe his rights secured by the Federal Constitution. In Hardin v. Jordan, 140 U. S. 871 (11 Sup. Ct. 808, 838), it was said: “We do not think it necessary to discuss this point further. In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the State in which the lands lie.” See, also, City of St. Louis v. Myers, 113 U. S. 566 (5 Sup. Ct. 640). We have called attention to the act of 1913. Other States have had occasion to deal with a similar question. In some instances the subaqueous lands may only 'be leased to the littoral owner; in others the littoral owner must be compensated before a lease is given. Whether further legislation is needed, or whether the exercise of hard-headed common sense by both littoral owner and the conservation department will solve their problems, are questions not for us to determine. A decree will be here entered in accordance with this opinion. No costs will be allowed either party. Flannigan, C. J., and North, Clark, McDonald, Bird, and Sharpe, JJ., concurred. Wiest, J., concurred in the result.	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McDonald, J. The plaintiffs are doing business as the Citizens’ Bank of Hadley, Michigan. They brought this suit to recover the amount of a promissory note, given by the defendants to the Equator Oil Range Company for $500. The note was executed on October 23, 1923, and was payable on the first of May, 1924. On its face, it was stated that it was collateral to a stock subscription of even date therewith. It was indorsed by the payee to the plaintiff bank. The defense was that the note was procured by fraud; that it was without consideration; that it was given as collateral to a stock subscription and was therefore nonnegotiable; that there was no liability on the stock subscription contract because it had not been completed by acceptance of the company; and that no stock had been delivered to the defendants or tendered to them. At the conclusion of the proof, both parties moved for a directed verdict. The court directed the verdict in favor of the defendants. Judgment was entered on the verdict. The plaintiffs have brought error. The plaintiffs’ right to recover in this case depends upon the negotiability of the note on which they sue. If it is a negotiable instrument, they are holders in due course and are entitled to recover the full amount of the note. If it is not negotiable, they hold it subject to any legal defense which the defendant would have ■against it if it were still in the hands of the Equator Oil Range Company. 'The note is not negotiable. It refers to another 'collateral instrument which must be read in connection with it. On its face is the statement: “This note is collateral to stock subscription number ..............of even date herewith.” This statement was notice to the plaintiffs of an■other contract which they were bound to take into 'consideration in buying the note. If there was any "'Uncertainty about the makers’ liability on the face of the subscription contract, it would be repugnant to the certainty of the promise in the note. In Costelo v. Crowell, 127 Mass. 293 (34 Am. Rep. 367), it was said: “The words written upon the face of the note, ‘given as collateral security with agreement,’ being incorporated in and made part of the contract, indicate with clearness that there may be a contingency, to wit: the performance of the undertaking to which this is collateral, in which it would not be payable; and so it lacks that element of negotiability which requires that at all events a sum certain shall be payable at a certain time.” See, also, 8 C. J. p. 120; 3 R. C. L. p. 883, § 69. The test of negotiability would seem to be whether there was an uncertainty in the subscription contract that would render uncertain the express promise in the note to pay unconditionally and at all events a certain sum in money. A reference to the terms of the stock subscription contract will show that certainty of payment depended upon the approval of the contract by the Equator Oil Range Company, and no approval appears on the face of the instrument. There was no binding agreement to pay until the approval was made by the company. The subscription was merely an offer to subscribe, which offer was never accepted by the company by word or act. The subscriber never became bound to pay for the stock. The company never became bound to issue stock to him. If the defendant were here suing to enforce his subscription, the company could truthfully say that it never accepted him as a stockholder. If the note had remained in the hands of the company, the defendant could not have been compelled to pay. It is subject to the same defense in the hands of the plaintiffs. The claim that this defense was not open to the defendants, because no affidavit denying the execution of the note was filed, has no merit. No other questions require discussion. The judgment is affirmed, with costs to the defendants. Clark, Bird, and Sharpe, JJ:, concurred with McDonald, J.	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North, J. The appellant was charged with unlawfully selling and furnishing intoxicating liquors. In the complaint, warrant, and information this violation was specifically charged as a second offense, and defendant was found guilty. The first two assignments of error are based upon the refusal of the trial court to quash the information, or at least his refusal to strike out that portion of the information whereby this violation was charged as a second offense; it being defendant’s claim that there was no' competent evidence introduced at the examination to support the charge as a second offense. The record contains the testimony of a deputy county clerk who produced before the examining magistrate the records concerning the .conviction and sentencing in Ingham county of one Bert Spears on a charge of illegally transporting intoxicating liquors. From such records the defendant in that case appeared to have been arraigned September 28, 1925, convicted by a jury October 16, 1925, and sentenced October 20, 1925. But it is contended there was no evidencie of identity between the defendant Bert Spears in that case and the defendant Bert Spears in this case. At the examination there was no such proof except the identity of name and location; but this was sufficient for the purposes of the examination and holding the defendant for trial at the circuit. The statute (3 Comp. Laws 1915, § 15682) only requires “it shall appear * * * that there is probable cause to believe the prisoner guilty” of the offense charged. “The great weight of authority is to the effect that from identity of names identity of persons will be presumed unless, perhaps, the name is a very common one or there are other special circumstances creating confusion in the. identity. This rule has * * * frequently been applied in criminal as well as civil proceedings.” 19 R. C. L. p. 1332. See, also, People v. Absher, 240 Mich. 107; Atwood v. Sault Ste. Marie Light Co., 148 Mich. 224 (118 Am. St. Rep. 576); People v. Robinson, 135 Mich. 511; Clow v. Plummer, 85 Mich. 550. The third assignment is that the trial court permitted the names of three additional witnesses to be indorsed on the information on the day of trial and before the jury was drawn. The statute (3 Comp. Laws 1915, § 15761) requires the prosecuting attorney to indorse the names of witnesses known to him at the time the information is filed; “and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.” Only two of these witnesses were sworn, Hugh Silsby and George Bearup. They were sheriff and deputy sheriff, respectively, of Ingham county and were the officers who arrested the defend ant for illegally transporting liquor in 1925. They testified they knew defendant and presumably he had some recollection of them. Their testimony had to do only with the question of identity. There was no dispute in the testimony on this issue; and the defendant’s wife, whom he called as a witness, testified that her husband was convicted in the former prosecution. At the time the order was made for indorsing these names the defendant made no application for a continuance. His rights were not prejudiced by the order. People v. Mills, 94 Mich. 630; People v. Powers, 203 Mich. 40; People v. Maka, 237 Mich. 507. Assignments of error eight to eleven, inclusive, have to do with the charge of the court. Complaint is made because the case was submitted as one of furnishing liquor rather than selling, it being claimed that if any violation was proven it was a sale. There is. no merit in this contention. The information charged both unlawful selling and furnishing; and proof of a sale would be proof of furnishing. It is also asserted by defendant that the court failed to define “reasonable doubt;” that he omitted to charge relative to “presumption of innocence;” or that the jury must find as a fact that the liquor was intoxicating; and that by the charge the defense was limited to the establishment of an alibi. A fair reading of the charge convinces us that none of these contentions are well founded. The court said in part: “This is a case in which Bert Spears is charged with furnishing liquor illegally. * * * Now, in this case, as in every case, the respondent comes into court clothed with the presumption of innocence. The burden of proof is upon the people, and the people must prove to you beyond a reasonable doubt, by the evidence, that Bert Spears was guilty as charged. * * * Any furnishing or possession of intoxicating liquor is a crime under the statute. The people must prove that a crime has actually been committed.” The charge did not restrict appellant’s defense to his claimed alibi, nor did it fail to fairly protect his rights in submitting the case to the jury. No requests to charge were submitted by the defendant, nor was the trial court asked to modify or amplify the charge as given. In the absence of a special request, it was not necessary to define the meaning of “reasonable doubt.” People v. Waller, 70 Mich. 237. The defendant has no just cause for complaining of the ■charge as given. The record does not justify defendant’s contention that the trial court was in error in denying his motion for a new trial. The other assignments of error have been examined, but found to be corollaries of those hereinbefore considered, and they are without merit. The conviction'and judgment are affirmed. Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.	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Fellows, J. Plaintiff was employed in a store located on Monroe avenue in the city of Grand Rapids. At about 1:30 in the afternoon she had occasion to cross the street. At the point of crossing there was a platform used as a safety zone adjoining the street car tracks, 99 feet long, 4 feet wide, and 6 inches high. It is plaintiff’s claim and testimony that she stepped up on this platform, that it was crowded, some street cars were standing there to take on and discharge passengers, and that, while waiting for the traffic to clear, the automobile owned by defendant Mrs. D. M. Perry and driven with her consent ’by her daughter, defendant Eleanore Perry, was driven so closely to the platform as to catch her clothing, drag her into the street, her ankle was run over causing a fracture of two bones at or near the same. She was unable to work for some time and there is testimony of loss of earnings, and considerable suffering. Defendant Eleanore Perry was alone in the car when the accident occurred. She testified.that she was driving in the usual course of traffic, in the middle of that portion of the street, which from the curb to the platform was 10 feet and 6 inches wide, and while she did not see plaintiff until about the moment of the accident, the effect of her testimony was that she was not on the platform at all but was out in the street when the accident occurred. The case was submitted to the jury and a verdict for $1,500' was rendered. It is insisted that there was no evidence to- take the question of defendant’s negligence to the jury; that the happening of the accident alone ÍS' not evidence of negligence and that the plaintiff’s case at most rested on conjecture, surmises and guesses. This court has consistently refused to adopt the rule of res ipsa loquitur and has as consistently held that cases may not go to the jury where recovery can only be based 'on guesses, conjectures, and speculation. But we have also pointed out that there is a difference between conjecture and the weighing of probabilities from the established facts. There was testimony that defendants’ car. was driven within five inches of the platform; there was testimony tending to show that plaintiff’s clothing was caught by it. Manifestly if plaintiff’s clothing was caught by it, that fact is some evidence that the car was driven very close to the platform. It was midday, the platform was a large one and readily visible to any one driving down the street; it was crowded with people. Under the facts disclosed by this record it can not be said that no negligence of defendants was proven, and the court did not err in refusing to direct a verdict for defendant on this ground. It is strenuously urged that the court erred in the instructions to the jury on the question of contributory negligence. Error is assigned on the charge as given and the refusal to instruct as requested. The trial judge charged the jury that plaintiff would not be guilty of contributory negligence if she remained on the platform. It may be said that upon the question of contributory negligence the case was made to turn on the question of whether plaintiff stepped down from the platform or not, the court in effect charging that if she did she was negligent. He refused instructions antagonistic to the view entertained in his charge. The platform, six inches high, was a safety zone. It was crowded with people. The fact that plaintiff was forced to stand at the edge of the platform was in no wise due to her fault. A safety zone should be a place of safety. ' We had a somewhat similar question before us in Jarosz v. Geisler, 219 Mich. 283. In that case there was a dispute as to where the deceased was when struck; this made the question one for the jury as we held. But in discussing defendant’s contention that a verdict should have been directed on the ground of contributory negligence, this court was required to determine the rights of deceased if he was within the safety zone and it was there said by this court, speaking through Mr. Justice McDonald: “Whether or not he intended to board the car or. to cross the street to the sidewalk, he had a right to believe that while he was within that area he would not be run down by an automobile; he had a right to assume that the driver of the truck would exercise reasonable care and not drive his machine into the place where passengers are accustomed to get on and off of street cars.” We think that case controlling of the one before us. Plaintiff’s medical testimony negatived the permanency of the injury. Defendants asked an instruction that she was not entitled to recover for permanent injury. This instruction was refused. On the question of damages the trial judge instructed the jury: “Now if you find from the evidence in this case under these instructions I have given you that plaintiff is entitled to recover, then you will consider what the amount of her doctor bills are and having an X-ray taken, what it cost her, what those expenses are,' and if you find she is entitled to recover she is also entitled to recover all of the earnings she has lost by reason of this injury at the rate of $25 per week for the time she lost. Now if she is entitled to recover, she is entitled to recover for her pain and suffering that she suffered.” He then instructed them properly as to their duty in fixing the damages for pain and suffering. In concluding his charge he said: “If you find it was, you determine what in your judgment would be a sum of money that would fully and fairly compensate the plaintiff for the money she had to pay out and the loss of her earnings, and for her pain and suffering.” While the specific instruction requested was not. given it will be seen that recovery was by the charge limited to expenses, loss of time, pain and suffering in the past and did not justify any allowance for anything in the future. Defendants’ counsel rely on Butter v. Railway, 181 Mich. 617; Matthews v. Lamberton, 184 Mich. 493; Kethledge v. City of Petoskey, 179 Mich. 301. In the Butler Case the charge of the court does not appear in the opinion bu.t an examination of the record shows that the following was the instruction on the question of damages and all the instruction on that subject: “And if you say guilty, you are at once to compute, what in your judgment — what in your average judgment — would be a just compensation. Damages are intended, when they are awarded, to make good the injured party. The real purpose of damages would be to make good the injured party. It would be impossible to add it up here for you; that is,a matter for you to determine.” This court held that it was error to refuse the specific instruction that a recovery' could not be had for permanent injury. It is manifest that the instructions given did not cover the subject or cure the error. In the Matthews Case the instructions do appear in the opinion, and it will be noted that they permitted recovery for both past and future damages. In the Kethledge Case the instructions permitted recovery for permanent injury although the evidence did not tend to establish such injury. In the instant case, while the court did not instruct the jury what damages she could not recover for, he did instruct them what damages she could recover for and limited the same to the present damages. We must assume they followed such instructions. Indeed, the size of the verdict negatives any claim they did not. See Jozefiak v. Railway, 193 Mich. 318. We do not perceive that defendant was in any way prejudiced by the failure to give the specific instructions. The other errors need not be discussed further than to say that the verdict was not against the clear weight of the evidence. The judgment will be affirmed. Flannigan, C. J., and Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice SNOW took no part in this decision.	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McDonald, J. This action was brought to recover damages for personal injuries received from fire alleged,to have been caused by an explosion of kerosene sold by the defendants. Helen Hoadley is an infant. She was injured on July 8,1924. On March 80, 1925, she settled her claim for damages with the Gafill Oil Company for $1,000. In the settlement agreement, which was reduced to writing, she was represented by her father, Harrison Hoadley, and her brother, Glenn Hoadley. It was agreed that she should apply to the probate court for the appointment of a guardian, who, when appointed, should cause a suit to be begun in the circuit court against the defendant and that the defendant would consent to the entry of a judgment against it for $1,000, and would pay the same. The father, Harrison Hoadley, was appointed guardian of the plaintiff and duly qualified. The settlement agreement was fully carried out; suit was begun; judgment for $1,000 was obtained and was paid and discharged by the defendant. On March 26, 1927, the present suit was begun involving a claim for damages for the same injury as that for which judgment had been entered in the former suit. No motion was made to set aside the former judgment and no reference was made to it in this declaration. It came into the case with defendants’ plea in which the facts were alleged and the claim made that the former judgment was res adjudicada of the matters averred in the plaintiff’s declaration. On this ground the defendants subsequently filed a motion to dismiss. The circuit judge granted the motion and entered an'order of dismissal. The plaintiff has brought error. It is the contention of counsel for the plaintiff that the former judgment is not binding on her because it was entered by the court without an Investigation of the facts and without any knowledge as to whether the settlement on which it was based was fair and just. In support of this contention, he cites Dudex v. Sterling Brick Co., 237 Mich. 470; Palazzolo v. Judge of Superior Court, 234 Mich. 547; and Metzner v. Newman, 224 Mich. 324 (33 A. L. R. 98). These cases might be applicable if this proceeding were a motion to set aside the judgment. The trouble with counsel’s argument is that it is all directed to a collateral attack on the former judgment. That judgment was rendered by a court having jurisdiction of the parties and of the subject-matter. It is binding until set aside, and it can only be set aside in a direct proceeding brought for that purpose. The circuit judge correctly held that the judgment rendered in the former case was a bar to the plaintiff’s recovery in this suit. It is also argued by the plaintiff that, as the defendant Sigmond Patz was not a party to the former suit, he is not released by the judgment rendered in that case. The plaintiff is here suing for the same wrong and on the same facts as were involved in her previous suit in which she obtained judgment which has been satisfied by payment. Her theory in this suit is that the defendants were joint wrong-doers. “As a plaintiff can have but one satisfaction for a joint wrong, if he recovers a judgment against one of the tort-feasors and obtains satisfaction, this operates as a discharge of the others.” 34 C. J. p. 982, § 1404. Counsel concludes his argument with the request that if the judgment be reversed this court direct that the case be transferred to the chancery side of the court under the provision of section 12351, 3 Comp. Laws 1915. That statute has no application to the situation presented by this record. The judgment is affirmed, with costs to the defendants. Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, and Clark, JJ., concurred. The late Justice Snow took no part in this decision.	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Fellows, J. Defendant trust company acted as agent for a Mrs. Webb in the management of her property. It rented her real estate and collected the rents. Among the property owned by her was a store building on Division street in Grand Rapids. This was rented to a Mrs. Traxler who sublet a portion of it to plaintiff. He made some repairs and established a restaurant in the portion so rented. The repairs included covering a portion of the walls with composition beaver-board. The restaurant was run for a time by a man named Wilson, was then sold to Mr. Badgerly, who ran it a few months, and it was then sold by plaintiff to a Mrs. Beiber on a title-retaining contract,'the effect of which we need not determine. Mrs. Beiber paid the rent to defendant and ran the place for a few months, when she quit and left for parts unknown. Plaintiff obtained the key she had left and for nearly three weeks, had opportunity to remove the property covered by his title-retaining contract. He paid no rent, hor had he ever paid rent to defendant. He was asked to remove the property, but replied that he would do so. when he got ready. Learning that he was tearing off the beaver-board, defendant put a new lock on the building, replaced the beaver-board he had torn off, placed the movable property in storage subject to plaintiff’s order, and notified him of this fact. Shortly thereafter this action for conversion was instituted. It was tried by the court without a jury, and written findings of fact and conclusions of law were filed. Judgment for defendant was entered. The trial judge reached the conclusion that the beaver-board became a part of the real estate. The testimony sustains the findings upon which this conclusion is based. In plaintiff’s declaration he alleged that he became a subtenant under one Samuel Glover, and that it was agreed between him and Glover that he could remove the beaver-board. But there is not a scintilla of evidence to sustain this allegation. He testified that he rented from Mrs. Traxler, and he does not testify that he had any arrangement either with her or with Glover, who had no interest of any kind in this property, or any one else, that he could remove the beaver-board. It cost him about $40, and was securely attached to the wall by means of strips of wood nailed with sixpenny nails. He did not consult with Mrs. Webb or her agent before putting it on, and it is exceedingly doubtful that he ever intended to remove it until this controversy arose. There is testimony that its removal did damage to the building, how much is in dispute. Under the rules laid down by this court in numerous cases, some of which are cited and quoted from in Morris v. Alexander, 208 Mich. 387, it can not be said as- matter of law that the beaver-board remained the personal property of the plaintiff to be removed by him when and as he saw fit. See O’Brien v. Kusterer, 27 Mich. 289; McAuliffe v. Mann, 37 Mich. 539; Felcher v. McMillan, 103 Mich. 494. The restaurant had the usual accessories consisting of dishes and other articles necessary to conduct the business. The testimony is ample that plaintiff had reasonable time and opportunity to remove this property. Defendant did not and does not make any claim to it. Another tenant had been obtained for the premises and defendant desired to put them in shape for occupancy. Plaintiff was requested to remove the property; he said he would do so when he got ready. He was informed that if he did not remove the property defendant would place it in storage so it could use the premises. This it finally did, and there is no claim that any of it was damaged or that it was not properly stored subject to plaintiff’s order. He was given notice of this fact. This was not a conversion of the property by defendant.' The case is not unlike Mattice v. Brinkman, 74 Mich. 705. It was there said by Mr. Justice Morse, speaking for the court: “He could have got his goods at any rate on Tuesday, and probably on any day before that if he had asked for them. But it seems, from his owii testimony, that he preferred to call the transaction a sale of the goods to the defendant, and to make him ■ pay for them. Such action is not to be encouraged by the courts. * * * Here the right of the plaintiff to the personal property was never denied, and it was his own fault that he did not regain his goods. They were simply moved from one place in the building to another as a necessary act in the taking of possession by defendant of the building. To call this a conversion, because defendant had no right to so move them, when the possession of or title to them in the plaintiff was never questioned, and they were neither lost nor destroyed by such moving, would not only be unjust, but such a holding would find no support in the law.” The judgment will be affirmed. Flannigan, C. J., and Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice Snow took no part in this decision.	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Corrigan, C.J. The prosecution appeals by right the order vacating defendant’s convictions of three counts of assaulting an employee of a place of confinement, MCL 750.197c; MSA 28.394(3), because, although proving that defendant was a prison inmate, the prosecution failed to prove that he was “lawfully” imprisoned. In People v Gaines, 223 Mich App 230; 566 NW2d 35 (1997), this Cotut held that, for purposes of the instant offense, a rational trier of fact could not find beyond a reasonable doubt that an inmate was lawfully imprisoned on the basis of evidence that he was incarcerated in a state prison. We therefore affirm under Gaines. But for our obligation under MCR 7.215(H)(1) to follow Gaines, however, we would vacate the trial court’s order and reinstate defendant’s convictions. i This case arises from an altercation between inmates and guards at the Gus Harrison Correctional Facility, a state prison located in Adrian. The prosecution charged defendant with three counts of assault with intent to do great bodily harm less than murder (agbh), MCL 750.84; MSA 28.279, for his role in the melee. At the close of evidence, the prosecutor requested an additional instruction on the offense of assault of an employee of a place of confinement. The trial court granted the request. The jury acquitted defendant of agbh, but found him guilty of three counts of assaulting an employee of a place of confinement. The trial court enhanced defendant’s sentences as a fourth-offense habitual offender, MCL 769.12; MSA 28.1084, and sentenced him to a term of imprisonment of five to fifteen years for each conviction. Defendant subsequently moved to set aside his convictions and dismiss the charges because of insufficient evidence. The trial court granted the motion, reasoning as follows: The prosecution, at trial, proved that defendant was a prison inmate at the time the offense occurred but it did not offer a copy of his Judgment of Setence [sic] or any other evidence to establish that such imprisonment was lawful. On April 26, 1997, the court decided People v Gains [sic], 223 Mich App 230, 566 NW2d 35 (1997), which was released for publication on July 16, 1997. In that case, a divided panel of the Michigan Court of Appeals by 2 to 1 vote, decided that the legislature specifically chose to require the prosecution to prove that the defendant was lawfully confined in prison in order to sustain a conviction. The Court of Appeals ruled that their proof that he was an inmate was insufficient. The prosecutor proved defendant, Dashone Neal, was a prison inmate, but did not prove he was lawfully imprisoned. Defendant’s conviction [sic] shall be vacated and the defendant discharged as to these charges. II The prosecution argues that the trial court erred in granting defendant’s motion because evidence that defendant was a prison inmate at the time he assaulted the prison guards was sufficient to prove that he was lawfully imprisoned. We agree, but are required to hold otherwise by MCR 7.215(H)(1). In reviewing the sufficiency of the evidence, this Court views the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992). To support a conviction of assault of an employee of a place of confinement, the prosecution must prove that the defendant: (1) was lawfully imprisoned in a place of confinement; (2) used violence, threats of violence, or dangerous weapons to assault an employee of the place of confinement or other custodian; and (3) knew that the victim was an employee or custodian. MCL 750.197c; MSA 28.394(3); People v Williams, 173 Mich App 312, 318; 433 NW2d 356 (1988); People v Norwood, 123 Mich App 287, 294-295; 333 NW2d 255 (1983). In Gaines, supra at 234, this Court, after concluding that lawful imprisonment was an element of the offense of assault of an employee of a place of confinement, determined that evidence of the defendant’s incar ceration in a state prison was insufficient to prove the lawfulness element because a rational trier of fact could not infer lawfulness from the imprisonment itself. Gaines further noted that the prosecution could have easily satisfied its burden by introducing the defendant’s judgment of sentence for the crime for which he was imprisoned. Judge D. A. Burress concurred in the majority opinion, but wrote separately to expound on the underlying facts. Judge Burress emphasized that the prosecution did not produce evidence of the defendant’s prior convictions and sentences until the habitual offender phase of the trial. He rejected the prosecution’s argument that the jury could infer lawfulness from the incarceration itself and observed as follows: The prosecution has available to it many avenues by which it may prove that an individual has been lawfully incarcerated. Some are more cumbersome to navigate than others. For instance, it may elect to bring forward witnesses who were present at the time a sentence was imposed, or those who were present when an individual was otherwise confined by lawful authority. Others may take the more convenient route of simply producing a certified record of the sentence or other commitment. [Id. at 238-239.] Judge Sawyer dissented from the majority opinion in Gaines. Viewing the evidence in a light most favorable to the prosecution, Judge Sawyer concluded at 240: In the case at bar, I am satisfied that a rational trier of fact could conclude that defendant was lawfully imprisoned on the basis of the fact of his imprisonment and that none of the evidence suggested that the imprisonment was unlawful. Cf. People v Williams [supra]. While unlawful incarceration may occur, it is certainly a rare occurrence. In the absence of any suggestion to the contrary, a rational trier of fact could reasonably infer that an incarceration is lawful. In this case, as in Gaines, the prosecution presented no evidence beyond the incarceration itself to establish that defendant was lawfully imprisoned. Accordingly, under Gaines, the prosecution failed to present sufficient evidence to support the convictions. Thus, the trial court properly vacated the convictions. m If we were not obligated under MCR 7.215(H)(1) 1° follow Gaines, we would vacate the trial court’s order and reinstate defendant’s convictions because the prosecution presented sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that defendant was lawfully imprisoned. We would follow the reasoning of Judge Sawyer’s dissent and conclude that a rational trier of fact could find that defendant was lawfully imprisoned on the basis of evidence that he was, in fact, incarcerated in a state prison when he assaulted the prison guards. We initially agree with Gaines that the prosecution must establish the lawfulness of the imprisonment as part of its prima facie case of assault of an employee of a place of confinement. MCL 750.197c; MSA 28.394(3) expressly so provides: A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place, including but not limited to hospitals and other health care facilities or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from a prison, for a crime or offense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made, is guilty of a felony. Both Michigan courts and courts of other jurisdictions have historically construed statutes requiring “lawful” imprisonment, detention, or commitment as providing that lawfulness is an element of the prosecution’s prima facie case. See People v Hamaker, 92 Mich 11, 16; 52 NW 82 (1892); see, generally, Perkins, Criminal Law (2d ed), ch 5, § 3a, pp 502-503; 4 Torcia, Wharton’s Criminal Law (15th ed), § 640, pp 451-453. Further, when the Legislature amended the prison escape statute, MCL 750.193; MSA 28.390, to eliminate the lawfulness element, the Legislature did not similarly amend MCL 750.197c; MSA 28.394(3). Thus, lawfulness remains an element of the prosecution’s prima facie case in prosecutions under MCL 750.197c; MSA 28.394(3). We disagree, however, with Gaines’ determination regarding the quantum of evidence necessary to prove lawfulness when the defendant is incarcerated in a state prison. Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of an offense. People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996). Were we to consider this issue as a matter of first impression, we would conclude that a jury could reasonably infer lawful imprisonment from evidence that the defendant was incarcerated in a state prison. MCL 750.197c; MSA 28.394(3) applies to persons “lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place . . . .” Thus, the statute applies to persons incarcerated in both jails and state prisons, which are places “of confinement established by law for any term.” People v Wingo, 95 Mich App 101, 104; 290 NW2d 93 (1980). State prisons are, however, far more selective in their admission criteria than jails. The jury may rely on its common knowledge that a person must have been convicted of a crime to attain prison inmate status. People v Schmidt, 196 Mich App 104, 108; 492 NW2d 509 (1992); CJI2d 3.5(9). Thus, the jury may reasonably infer that a defendant was lawfully imprisoned from evidence that he was incarcerated in a state prison. Cf. Wright v Mississippi, 162 Miss 494, 499-500; 139 So 869 (1932). This Court apparently recognized the reasonableness of this inference in People v Williams, supra. In Williams, supra at 318, this Court held that the prosecution presented sufficient evidence to support convictions of assaulting an employee of a place of confinement and of being an inmate in possession of a weapon, MCL 800.283(4); MSA 28.1623(4). It reasoned: The prosecution’s evidence indicated that defendant was an inmate at the state prison in Marquette, that he struck prison employee Edward Humphrey on the forehead with a rolled-up magazine with a ball point pen inserted in one end sticking out two to three inches and bound with a piece of cloth, and that defendant was familiar with Humphrey as a resident unit officer responsible for prisoners in the block in which defendant was housed. Humphrey’s wound left him dazed and required three stitches near his hairline. Additionally, he sustained a laceration one inch long over his left eye. The pen and magazine implement was ultimately recovered from the area of defendant’s cell. In light of these proofs, the jury’s verdict was well supported by the evidence. We recognize, as Judge Burress notes in his concurrence in Gaines, that a person’s incarceration in a state prison may be unlawful. See Hamaker, supra, Cross v Dep’t of Corrections, 103 Mich App 409; 303 NW2d 218 (1981), and People v Alexander, 39 Mich App 607; 197 NW2d 831 (1972). The prosecution need not, however, negate every theory of innocence to establish a prima facie case. See People v Quinn, 219 Mich App 571, 574; 557 NW2d 151 (1996). Unlawful imprisonment is certainly a rare occurrence. Further, that the prosecution could proffer additional evidence, such as a judgment of conviction, to strengthen its case is of no consequence. MCL 750.197c; MSA 28.394(3) does not require a defendant to be in custody by virtue of a conviction. Compare 18 USC 751(a); United States v Richardson, 687 F2d 952, 966-967 (CA 7, 1982). Thus, the prosecution may, but need not, proffer a judgment of conviction or other additional evidence to prove the lawfulness of the imprisonment. The prosecution may instead simply elect to rely on a reasonable inference drawn from the defendant’s incarceration in a state prison. The jury, not this Court, should weigh the evidence presented. See People v Lemmon, 456 Mich 625, 638; 576 NW2d 129 (1998). Accordingly, if we were not obligated to follow Gaines, we would hold that a reasonable jury could find on the basis of the evidence in this case that defendant was lawfully imprisoned. Affirmed. This Court has held that unlawful imprisonment remains an affirmative defense to a charge of prison escape. People v Hurst, 59 Mich App 441, 443-446; 229 NW2d 492 (1975). Michigan statutes provide that those incarcerated in a state prison must have been convicted of a crime and sentenced to a maximum term of at least a year and a day. MCL 769.28; MSA 28.1097(1); People v Blythe, 417 Mich 430, 437; 339 NW2d 399 (1983). When a defendant is sentenced to confinement in prison, the sheriff must not only convey the defendant from jail to prison and deliver him to the warden, MCL 800.48; MSA 28.1417, but also deliver a certified copy of the sentence prepared by the clerk of the court. MCL 800.50; MSA 28.1419, MCL 769.17; MSA 28.1087. We respectfully disagree with those courts in other jurisdictions that have reached contrary results. Harding v Arkansas, 248 Ark 1240; 455 SW2d 695 (1970); Fulford v Florida, 113 So 2d 572 (Fla App, 1959). We express no opinion regarding those decisions rejecting an inference of lawfulness from evidence of incarceration in a county jail. Louisiana v Thompson, 597 So 2d 26 (La App, 1992); Maggard v Florida, 226 So 2d 32 (Fla App, 1969), overruled on other grounds in Florida v Williams, 444 So 2d 13 (Fla, 1984) (holding that unlawfulness of confinement was an affirmative defense, not an element of the crime of escape). Imprisonment is not rendered unlawful because the conviction leading thereto is subsequently reversed or otherwise infirm. See People v Mullreed, 15 Mich App 538, 539; 166 NW2d 820 (1969); see, generally, Torcia, supra, §§ 640, 643, pp 451-454, 463-464.	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O’Connell, J. In this action based on Michigan’s Freedom of Information Act (foia), MCL 15.231 et seq.\ MSA 4.1801(1) et seq., plaintiff challenges the trial court’s ruling that certain documents in defendant’s custody were privileged against disclosure. Plaintiff further appeals, and defendant cross appeals, from the court’s award of attorney fees to plaintiff as a partly prevailing party. We affirm. I. FACTS AND PROCEDURAL HISTORY In a much publicized incident in 1994, plaintiff removed his prematurely bom son from artificial fife support, and the child died shortly thereafter. Defendant prosecuted plaintiff for manslaughter, but the jury returned a verdict of not guilty. Plaintiff subsequently submitted a request under the foia for his entire criminal case file. Defendant complied in part, but refused to disclose many documents on the ground that they came under various statutory exemptions to the requirement to disclose. The trial court examined the disputed documents in camera and ordered the release of some, but concluded that many others, identified as “deliberative materials such as notes or drafts of pleadings or evaluations made by members of the prosecutor’s staff,” were exempt from disclosure. Plaintiff had scheduled a deposition of an attorney who had personally participated in preparations for the prosecution of plaintiff, but the court reasoned that the additional discovery would not assist in its in camera review of the documents in question and so decided the case without allowing the deposition to take place. Because plaintiff partially prevailed in obtaining additional disclosure under the foia, the trial court decided to award plaintiff half of his reasonable attorney fees. In calculating the award, the court accepted plaintiff’s counsel’s representation of fees as concerned most of the proceedings below, but reduced a claim of more than seventy-five billable hours for a motion to adjourn to six hours. Plaintiff argues on appeal that the trial court erred in ruling that all documents reflecting defendant’s deliberative work product were exempt from disclosure under the FOIA, that the court erred in deciding the case before plaintiff had completed discovery, and that the court improperly adjusted downward plaintiff claim of attorney fees. Defendant argues on cross appeal that the trial court failed to assess independently the plaintiff’s reasonable attorney fees attendant to the greater part of this litigation, but instead simply accepted plaintiff’s representations in the matter. n. THE attorney work-product privilege Plaintiff argues that the trial court erred in ruling that certain documents were privileged against disclosure under the FOIA. Whether requested information qualifies for exemption from disclosure under the FOIA is a mixed question of fact and law. On appeal, the trial court’s factual determinations are reviewed for clear error, but its legal conclusions are reviewed de novo. Schroeder v Detroit, 221 Mich App 364, 366; 561 NW2d 497 (1997). A. ORIGINS OF THE DOCTRINE The privilege from disclosure of attorney work product is most closely associated with the liberal discovery rules that attend to litigation in the state and federal courts in this country. “Under this rule any notes, working papers, memoranda or similar materials, prepared by an attorney in anticipation of litigation, are protected from discovery.” Black’s Law Dictionary (6th ed, 1990), p 1606, citing FR Civ P 26(b)(3). The common-law privilege in this state is the product of various decisions and court rules. Our Supreme Court recognized the common-law privilege against discovery of attorney work product in J A Utley Co v Saginaw Circuit Judge, 372 Mich 367, 373; 126 NW2d 696 (1964), restricting the privilege to information arising from the work of a lawyer in furtherance of the “special and personal” attorney-client relationship that “the common law has always protected.” This Court subsequently developed the doctrine further, taking guidance from federal case law: “ ‘[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.’ ” Powers v City of Troy, 28 Mich App 24, 29; 184 NW2d 340 (1970), quoting Hickman v Taylor, 329 US 495, 510; 67 S Ct 385; 91 L Ed 451 (1947). This Court recognized that, under federal and state principles of practice, the balancing of the policy favoring complete discovery and that favoring preserving attorney-client confidences weighed in favor of allowing a party seeking discovery of attorney work product to proceed only upon a showing of substantial need for the materials sought plus inability to obtain the information without undue hardship. Powers, supra at 32-33. This Court further recognized that the state and federal discovery rules have evolved to extend the privilege to include work product prepared by the party personally, or by the party’s insurer, indemnitor, or agent. Id. at 32-34. B. THE DISTINCTION BETWEEN FACTUAL AND DELIBERATIVE WORK PRODUCT The work-product privilege is reflected by MCR 2.302(B)(3)(a). This rule of civil discovery limits access to an opposing party’s work product prepared in anticipation of litigation, whether by the party or the party’s attorney or other representative, to situations where the party seeking discovery demonstrates both a substantial need for the material plus a lack of other reasonable avenues for obtaining it. Where this need is adequately demonstrated, however, the rule nonetheless unconditionally directs that the court “shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Id. This rule is worded not as if to create the privilege for work product, but rather to recognize an existing privilege. Further, the rule’s distinction between factual and deliberative work product comports with a tradition of guarding the latter more zealously than the former, as reflected in federal case law: To the extent that work product contains relevant, non-privileged facts, the Hickman doctrine merely shifts the standard presumption in favor of discovery and requires the party seeking discovery to show “adequate reasons” why the work product should be subject to discovery. However, to the extent that work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification. [In re Sealed Case, 219 US App DC 195, 211-212; 676 F2d 793 (1982), citing Hickman, supra at 512.] The rule guarding attorney work product from civil discovery applies equally to the prosecutor’s work product, whether in conjunction with representing the people of the state in criminal proceedings, as chief legal representatives of their respective counties .in all civil and criminal matters, Const 1963, art 7, § 4; MCL 49.153; MSA 5.751, or as the state’s agent for effectuation of the obligations of parens patriae in matters concerning the custody or welfare of children, MCL 552.45; MSA 25.121, MCL 722.533; MSA 25.373. See People v Gilmore, 222 Mich App 442, 453; 564 NW2d 158 (1997). C. APPLICABILITY OF THE PRIVILEGE UNDER THE FOIA Citing various authorities, the court below ruled that the work-product privilege did not apply in the instant case, because the prosecution of plaintiff was concluded and the parties were involved in no actual or contemplated litigation other than the controversy over the FOIA. However, the court concluded that the lack of underlying litigation defeated the work-product exemption only insofar as it concerned factual matters, ruling that “the deliberative materials such as notes or drafts of pleadings or evaluations made by members of the prosecutor’s staff are exempt.” The parties both indicate that the court below did not rely on the attorney work-product privilege for its ruling that certain documents were exempt from disclosure under the foia, stating that the court instead applied a common-law deliberative-process privilege. However, the court, observing that the parties were engaged in no litigation other than the instant controversy, stated that “it appears to me that . . . work product exemption does not apply, at least not to the factual materials,” but later added, “I feel that it is not clear that the deliberative materials are taken out of the exemption.” These statements indicate that the trial court recognized both the work-product privilege and its distinction between factual and deliberative materials, then concluded that under the instant facts defendant’s factual work product was subject to disclosure under the FOIA but defendant’s deliberative work product remained privileged. We hold that a prosecutor’s entire work product is privileged from disclosure under the FOIA. The FOIA is a mechanism through which the citizenry may examine and review the workings of government and its executive officials. The statute has in common with the state’s liberal discovery rules that it came into existence as a manifestation of the trend to disclose information that previously had generally been kept secret. The foia embodies this state’s strong public policy favoring public access to government information, recognizing the need that citizens be informed as they exercise their role in a democracy, and the need to hold public officials accountable for the manner in which they discharge their duties. MCL 15.231(2); MSA 4.1801(1)(2). However, in recognition that imperatives exist for keeping some information from public disclosure, § 13 of the act, MCL 15.243; MSA 4.1801(13), enumerates several exemptions to the duty to disclose. These exceptions are to be construed narrowly, in light of the public policy favoring disclosure. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 231-232; 507 NW2d 422 (1993). The enumerated exemptions cover materials subject to any “privilege recognized by statute or court rule,” subsection 13(l)(i), attorney-client privilege, subsection 13(l)(h), deliberative-process privilege, subsection 13(l)(n), and a privilege applicable to investigating records compiled for purposes of law enforcement, subsection 13(l)(b). When ruling whether exemptions within the foia prevent disclosure of particular documents, a trial court “must determine whether the government has met its burden of proving the claimed exemptions, and must give particularized findings of fact indicating why the claimed exemptions are appropriate.” Newark Morning Ledger Co v Saginaw Co Sheriff, 204 Mich App 215, 218; 514 NW2d 213 (1994). In the instant case, the trial court concluded that defendant’s deliberative work product was privileged under the foia, although it did not expressly indicate which statutory exemption or exemptions it applied in reaching that conclusion. However, the court’s citation of In re Subpoena Duces Tecum to the Wayne Co Prosecutor (On Remand), 205 Mich App 700; 518 NW2d 522 (1994), suggests that the court was applying subsection 13(l)(n), the only exemption at issue in that case. Id. at 705. That provision establishes the following exemption: Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging communications between officials and employees of public bodies clearly outweighs the interest in disclosure----[MCL 15.243(l)(n); MSA 4.1801(13)(l)(n).] This portion of the statute provides a mechanism through which any public body may seek to avoid disclosure of its deliberative process. Although this provision may seem to bear on a prosecutor’s right to avoid disclosure of deliberative work product under the foia, we do not rely on subsection 13(l)(n) to affirm the trial court’s decision. When this Court concludes that a trial court has reached the correct result, this Court will affirm even if it does so under alternative reasoning. See Morosini v Citizens Ins Co of America, 224 Mich App 70, 86; 568 NW2d 346 (1997); Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997). We conclude that the trial court properly withheld the disputed documents from disclosure, albeit under the wrong subsection of the FOIA. We affirm the trial court’s decision to permit nondisclosure of the documents at issue under the exemption articulated in subsection 13(l)(i), covering “information or records subject to . . . privilege recognized by statute or court rule.” As stated above, the attorney work-product privilege, although established principally by case law, is recognized by MCR 2.302(B)(3)(a). That recognition of the privilege by court rule engenders application of that privilege in actions under the foia through subsection 13(l)(i). Accordingly, recognition by subsection 13(l)(i) of the privilege for work product prepared in anticipation of litigation places all such material beyond the reach of the foia. This conclusion follows from careful consideration of various doctrines. As noted, to obtain pretrial discovery of an opposing party’s work product, the requesting party must demonstrate both substantial need and undue hardship, and even upon that showing the seeker may discover only factual, not deliberative, work product. MCR 2.302(B)(3)(a). However, where the issue is disclosure under the foia, generally neither the identity of the requester nor the requester’s need for the information is a relevant con sideration. See Kestenbaum v Michigan State Univ, 97 Mich App 5, 20; 294 NW2d 228 (1980), aff’d by equal division 414 Mich 510; 327 NW2d 783 (1982). Thus, the FOIA is not an appropriate mechanism for addressing the issues of personal need or hardship. The attorney work-product privilege incorporated into the FOIA through subsection 13(l)(i) stands in contrast with the general governmental deliberative process privilege established by subsection 13(l)(n), application of which by its own terms “requires the public body that possesses the records to show that the public interest in disclosure is outweighed by the public interest in encouraging frank communications between officials and the employees of public bodies.” Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 296; 565 NW2d 650 (1997). That exception puts the resisting government agency or official to the test of establishing that the rationale underlying the privilege would be well served by recognizing the privilege under the particular circumstances. In contrast, once a privilege is validly established as applicable under subsection 13(l)(i), there is no obligation to determine, or purpose in exploring, whether the reasons for the privilege are being advanced by its invocation. The assertion of a valid and apposite privilege as authorized by subsection 13(l)(i) ends the inquiry under the FOIA. For these reasons, we affirm the trial court’s decision to allow defendant not to disclose the documents at issue, on the ground that those documents were privileged as attorney work product prepared in anticipation of litigation. D. DISCOVERY Plaintiff argues that the trial court erred in deciding this case before plaintiff’s scheduled deposition of an assistant prosecutor who had participated in preparing the criminal case against plaintiff. We review a trial court’s decision to limit discovery for an abuse of discretion. In re Hammond Estate, 215 Mich App 379, 387; 547 NW2d 36 (1996). Because an assertion of public interest in disclosure cannot overcome the work-product privilege incorporated into the FOIA through subsection 13(l)(i), the trial court was not obliged to permit deposition of the assistant prosecutor in the course of letting plaintiff develop his case for the public interest. Further, public policy imperatives for ensuring the effective functioning of the prosecutor’s office militate against requiring prosecutors to submit to oral discovery concerning their work on a particular case. See Fitzpatrick v Secretary of State, 176 Mich App 615, 617-618; 440 NW2d 45 (1989) (“Department heads and other similarly high-ranking officials should not be compelled to personally give testimony by deposition unless a clear showing is made that such a proceeding is essential to prevent prejudice or injustice to the party who would require it.”); Sheffield Development Co v City of Troy, 99 Mich App 527, 532-533; 298 NW2d 23 (1980) (separation-of-powers principles counsel against judicial inquiry into the individual motivations of officials acting within other branches of government). In this case, even if plaintiff were entitled to argue the public interest in disclosure of the documents at issue, because deposing the assistant prosecutor would have amounted to little more than a “fishing expedition” by plaintiff, the trial court would nonetheless have properly decided the case without allowing that deposition to take place. See In re Hammond Estate, supra at 386-387. m. ATTORNEY FEES A AWARD OF FEES FOR MOTION TO ADJOURN Plaintiff argues that the trial court erred in awarding him only a small portion of the attorney fees he claimed for his filing of a motion to adjourn a summary disposition hearing. We review an award of attorney fees to a prevailing plaintiff in an action under the FOIA for an abuse of discretion. Michigan Tax Management Services Co v City of Warren, 437 Mich 506, 507; 473 NW2d 263 (1991). An abuse of discretion occurs only where a court’s action is so violative of fact and logic as to constitute perversity of will or defiance of judgment. Shanafelt v Allstate Ins Co, 217 Mich App 625, 634; 552 NW2d 671 (1996). When determining the amount of attorney fees to award a party under the FOIA, the trial court must independently assess that party’s reasonable fees. Michigan Tax Management, supra at 511-512. The trial court awarded plaintiff six billable hours for preparation of the motion to adjourn despite plaintiff’s assertion that the motion required 75.5 hours of work, finding plaintiff’s claim unreasonable. Although a more particularized explanation might have been helpful, we are satisfied that the court assessed the matter reasonably in light of the circumstances. Any experienced jurist would properly be suspicious of a claim of over seventy-five horns on a motion to adjourn. Plaintiff’s explanation for the generous claim of attorney’s hours attendant to what is normally a simple motion consists of pointing to the complexity of the issues involved and the need to act aggressively for reasons of timing and strategy. However, the complexities inherent in this controversy did not arise anew at the moment plaintiff wished to adjourn, and a need to work aggressively on behalf of the client has more to do with efficiency and expediency than with piling up hours of service. Because plaintiff demonstrated no unusual circumstances to justify his lavish claim of attorney fees attendant to the motion to adjourn, the trial court evidenced no “perversity of will” or “defiance of judgment” in disregarding plaintiff’s fanciful claim and substituting a figure based on ordinary courtroom experience. B. AWARD OF FEES FOR ALL OTHER PROCEEDINGS On cross appeal, defendant argues that the trial court erred in calculating the remainder of its attor ney fee award to plaintiff by accepting the exact amounts of fees that plaintiff claimed without conducting an independent review of the reasonableness of his claims. A trial court’s assessment of reasonable attorney fees must be more searching than simply approving or disapproving the calculations of others. Michigan Tax Management, supra at 511-512. The following factors bear on the inquiry: “ ‘(1) the professional standing and experience of the attorney; (2) the skill, time and labor [reasonably] involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the chent.’ ” Id. at 509-510, quoting Wood v DAIIE, 413 Mich 573, 587-588; 321 NW2d 653 (1982). In the instant case, the trial court considered the number of documents whose disclosure plaintiff had achieved through the litigation (factor 3), the experience and credentials of all the attorneys and others who worked on plaintiff’s case (factor 1), and the labor and difficulty reasonably involved in advancing plaintiff’s claim (factors 2 and 4). These indications, considered along with the court’s reduction of plaintiff’s claimed fees for the motion to adjourn, show that the trial court adequately examined plaintiff’s claimed attorney fees when fashioning its award. Accordingly, we conclude that the court did not abuse its discretion in calculating the award. IV. CONCLUSION The privilege for attorney work product is recognized by court rule, MCR 2.302(B)(3)(a), and thus incorporated into the FOIA through the latter’s subsection 13(l)(i). Accordingly, when material sought under the foia is identified as attorney work product, that material is not subject to disclosure, and questions of public interest or private need have no bearing on the question. Because all the documents at issue in this appeal fell under the attorney work-product privilege, the trial court properly withheld them from disclosure. Because defendant did not appeal the court’s decision to compel disclosure of defendant’s factual work product, we do not disturb that aspect of the judgment below, including the determination that plaintiff was entitled to an award of attorney fees as a partially prevailing party. The court’s manner of calculating plaintiffs award of attorney’s fees did not constitute an abuse of discretion. Affirmed. Markey, J., concurred. The decision to prosecute was so persistently controversial that it became an issue in the next election for prosecutor, which defendant, the incumbent prosecutor, lost. Because defendant did not choose to appeal the trial court’s decision to order the release of defendant’s factual work product, we do not disturb that aspect of the court’s judgment. However, we caution against reading this opinion as stating that only deliberative materials are exempt from disclosure under the foia under the privilege for attorney work product. Where attorney work product is concerned, this exemption in fact wholly subsumes the deliberative process exemption of subsection 13(l)(n). Deliberative process is obviously a subset of work product. Although any documents that would come under subsection 13(l)(n) would necessarily come under subsection 13(1)00 as well, the latter reaches more broadly, being neither restricted to deliberative materials nor subject to exception upon a sufficient showing of public need for disclosure. We decline to follow the dicta in In re Subpoena Duces Tecum, supra at 706, n 2, suggesting that where the work-product privilege does not apply for purposes of discovery (where a litigant is seeking discovery of the work product of a nonlitigant), the privilege likewise does not apply to requests under the foia. The discovery rule, MCR 2.302(B)(3)(a), provides a limited means through which litigants may discover material that normally enjoys a presumption of confidentiality — attorney work product. The rule recognizes the traditional broad privilege for attorney work product, extends it to cover nonattomey work product prepared in anticipation of litigation, and provides only a qualified exception where persons facing trial show sufficient need and hardship. Thus, the rule’s recognition of the attorney work-product privilege is incorporated into the foia through the latter’s subsection 13(l)(i), but the rule’s mechanism for allowing persons preparing for trial to overcome that privilege is inapplicable in the context of the foia. See Central Michigan Univ Supervisory-Technical Ass’n MEA/NEA v Central Michigan Univ Bd of Trustees, 223 Mich App 727, 730; 567 NW2d 696 (1997) (“The foia is ... a mechanism for the public to gain access to information from public bodies regardless of whether there is a case, controversy, or pending litigation.”). The exception in question, provided by statute, is where the requester under the foia is serving a sentence of imprisonment in a county, state, or federal correctional facility. MCL 15.232(c); MSA 4.1801(2)(c). Where the issue of need does arise under the foia, such as for weighing the public interest in disclosure against the public interest in encouraging frank intraoffice communications, subsection 13(l)(n), or against some individual privacy interest, Kestenbaum, supra at 20, the requester’s case must rest on the public interest in disclosure. A petitioner pursuing purely personal interests, such as preparing for litigation or seeking vindication of reputation, does not state a public need for purposes of the foia. See id. at 23. For the purposes of the foia, this privilege is statutory and may not be coextensive with the deliberative process privilege judicially established for civil litigation. In re Subpoena Duces Tecum, supra at 704-705. Our holding covers all documents at issue in this appeal. Because the trial court examined all documents in dispute and withheld from disclosure only those that reflected the prosecutor’s deliberative process, and because plaintiff has not raised as an issue on appeal the question whether the trial court clearly erred in so identifying any of them, for purposes of this appeal there is no dispute that all documents at issue are attorney work product. However, we do not mean to imply that a prosecutor’s entire file attendant to a case is presumptively exempt from the foia disclosure as attorney work product. To the extent that a prosecutor’s file contains materials other than attorney work product prepared in anticipation of litigation, that file remains subject to disclosure under the foia, subject to the various other statutory exemptions. Defendant opted not to argue on cross appeal that, because all materials in dispute came under the attorney work-product privilege and therefore were exempt from disclosure pursuant to subsection 13(l)(i), the trial court should not have awarded any attorney fees at all. But for plaintiff having prevailed in part in the trial court, there would have been no occasion to award attorney fees at all. Subsection 10(6), MCL 15.240(6); MSA 4.1801(10)(6). Given that the propriety of awarding some attorney fees is not at issue in this appeal, we hold only that the manner in which the' trial court arrived at its award did not constitute an abuse of discretion.	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Per Curiam. In these consolidated cases, plaintiffs appeal by right the Kent Circuit Court Chief Judge’s orders of March 12, 1996, dismissing their claims for their failure to personally appear for a special court-ordered settlement conference. We vacate and remand. These cases arise out of two separate complaints of sexual harassment against defendant filed in 1994. The two plaintiffs hired the same lawyer and are targeting the same employee at defendant’s company. Two different circuit judges presided over these cases, and each case was set for trial after initial settlement conferences held in 1995 did not resolve plaintiffs’ claims. On January 16, 1996, the chief judge ordered all parties to participate in a “Settlement Week” conference, stating that “[c]lients and persons with authority to settle shall be present” and that “[failure to prepare for, attend, or meaningfully participate in this settlement conference may result in the imposition of sanctions.” (Emphasis added.) Counsel for the parties agreed to consolidate the settlement conferences for the two plaintiffs on Monday, March 11, 1996. Neither plaintiff attended the settlement conference. Although plaintiffs’ counsel originally informed his clients erroneously that they need not attend unless he contacted them, he apparently later attempted to reach both clients over the weekend to secure their appearance. Unfortunately, it appears that one client was confused with respect to attending either the Friday or the Monday court dates, and counsel could not timely contact the other. The facilitator conducting the settlement conference informed the chief judge that neither plaintiff was present, but defendant’s counsel and a representative of defendant from out of state were ready to proceed. Immediately, the chief judge, already conducting court on other matters, ordered each case dismissed with prejudice pursuant to MCR 2.401(G)(1) “[b]ecause plaintiff failed to appear for a duly-scheduled and duly-noticed settlement conference, which failure the order scheduling the conference said would result in an adverse judgment.” Plaintiffs moved to set aside the dismissals, but the chief judge denied the motions, finding that under MCR 2.401(G)(1) dismissal would not cause manifest injustice due in large part to the nuisance value awarded to plaintiffs’ claims at mediation and because plaintiffs cannot evade the fault of counsel in advising his clients not to appear. Although plaintiffs raise several issues on appeal, they all boil down to whether the chief judge abused his discretion in dismissing plaintiffs’ claims against defendant because plaintiffs did not attend the court-ordered Settlement Week negotiations. We conclude he did. Because MCR 2.401(F) and (G) give the court discretion to dismiss a plaintiff’s claims for failure to participate in pretrial proceedings, we review for an abuse of that discretion. Indeed, an unbiased person reviewing the evidence would conclude that the trial court had insufficient justification for determining that plaintiffs’ complaints should be dismissed for their inadvertent failure to personally attend the second settlement conference in these matters. See People v McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994) Banaszewski v Colman, 131 Mich App 92, 95; 345 NW2d 647 (1983); see also Jack’s Factory Outlet v Pontiac State Bank, 95 Mich App 174, 178-179; 290 NW2d 114 (1980) (imposition of discovery sanctions under GCR 1963, 313.2, the predecessor of MCR 2.313, also reviewed for an abuse of discretion). MCR 2.401(F) and (G) read as follows: (F) Presence of Parties at Conference. In the case of a conference at which meaningful discussion of settlement is anticipated, the court may direct that persons with authority to settle the case, including the parties to the action, agents of parties, representatives of lienholders, or representatives of insurance carriers: (1) be present at the conference; or (2) be immediately available at the time of the conference. The court’s order may specify whether the availability is to be in person or by telephone. * * * (G) Failure to Attend; Default; Dismissal. (1) Failure of a party or the party’s attorney to attend a scheduled conference, as directed by the court, constitutes a default to which MCR 2.603 is applicable or grounds for dismissal under MCR 2.504(B). (2) The court shall excuse the failure of a party or the party’s attorney to attend a conference, and enter an order other than one of default or dismissal, if the court finds that (a) entry of an order of default or dismissal would cause manifest injustice; or (b) the failure to attend was not due to the culpable negligence of the party or the attorney. The court may condition the order of the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2). [Emphasis added.] Dismissal is the harshest sanction that the court may impose on a plaintiff. Even though the court rules permit the imposition of this sanction in appropriate circumstances, we do not believe that it is either mandated or warranted in the cases at bar. First, the 1996 Settlement Week in the Kent Circuit Court constituted the second settlement conference for both plaintiffs. “Settlement Week” is apparently an effective, innovative attempt that has been held twice in the Kent Circuit Court within a four-year period to resolve certain cases short of trial; however, no court rule specifically authorizes the operation of this intensive, selective settlement effort. Second, it is undisputed that plaintiffs’ counsel had complete authority to settle the cases and engage in meaningful settlement negotiations. Both cases had been pending since 1994, had progressed without any problems and were ready for trial. Importantly, both cases had been mediated and had regular settlement conferences. There is no evidence whatsoever that plaintiffs had historically avoided settlement discussions or had repeatedly ignored court orders. Indeed, the miscommunication and misunderstanding that occurred between plaintiffs’ counsel and plaintiffs was certainly not an intentional act of defiance of a court order, which makes the chief judge’s automatic imposition of involuntary dismissal even more troubling. Third, in a similar context, both this Court and legal commentators have recognized that under MCR 2.313(B)(2)(c), the rule setting forth sanctions for discovery failures, dismissal is warranted only in extreme cases. Although MCR 2.401, unlike MCR 2.313, does not elaborate on the sanction options available to the court for a party’s failure to participate in the litigation process, we believe that the intent underlying both provisions is the same: dismissal, the harshest sanction, should be reserved for the most egregious violations of the court rules. Indeed, the intent of MCR 2.401(F) is to ensure that the parties conduct meaningful settlement talks, which can only be accomplished where “persons with authority to settle the case, including the parties to the action [or] the agents of parties” are in attendance. Because in the case at bar, plaintiffs’ agent, their counsel, had full authority to settle both lawsuits, it appears that the intent underlying the court rule was satisfied. Neither can we read MCR 2.401(G) in a vacuum: it must be interpreted considering the purpose of the entire court rule on settlement conferences. To automatically dismiss a case that had proceeded through the litigation process for approximately two years, had been subject to one previous settlement conference, and had been mediated, merely for a party’s failure to personally appear when no evidence exists that their personal appearance had any bearing on counsel’s ability to settle the case, is an abuse of discretion and an inappropriate attempt to force a settlement. See Henry v Prusak, 229 Mich App 162, 170- 171; 582 NW2d 193 (1998), citing Woods v Murdock, 177 Mich App 210, 213; 441 NW2d 63 (1989). Moreover, we note that the wording of the court order mandating plaintiffs to personally appear advises that failure to attend “may result in the imposition of sanctions.” The manner, however, in which the chief judge summarily ordered dismissal of these two cases was tantamount to a form of “strict liability;” consequently, it was an abdication of the exercise of any judicial discretion. Moreover, once the dismissal was entered, plaintiffs were faced with the burden of moving to reinstate the case pursuant to MCR 2.401(G)(2). Fourth, we believe that entry of the involuntary dismissal was also improper because the chief judge failed to comply with MCR 2.504(B), as incorporated by reference into MCR 2.401(G)(1). According to the parties’ presentation during oral argument, once the facilitator determined that plaintiffs were not going to attend the Settlement Week conference, he merely presented the chief judge with a prepared order for involuntary dismissal of plaintiffs’ claims. The chief judge, who was at the time presiding over another matter, automatically signed the order. MCR 2.401(G)(1) states that a party’s failure to attend a scheduled conference constitutes grounds for dismissal under MCR 2.504(B). Thus, dismissal under MCR 2.401(G)(1) must proceed according to the strictures of MCR 2.504(B)(1), which states that “a defendant may move for dismissal of an action or a claim against that defendant” where the plaintiff fails to comply with the court rules or a court order. (Emphasis added.) MCR 2.504(B) provides no mechanism for a court to dismiss a case sua sponte, nor do we find any evidence in the record that defendant moved to dismiss plaintiffs’ complaints for their failure to personally attend the Settlement Week conference. We doubt that this requirement is a mere technicality, i.e., that if these cases are reinstated, defendant will immediately move to dismiss or, that under these circumstances, defense counsel would have moved to dismiss at the time of the Settlement Week conference. Attorneys use their discretion regarding when to seek sanctions against the opposing party and will frequently opt not to pursue sanctions. We can surmise that that is, in fact, a reason the chief judge automatically dismisses or defaults parties who fail to comply with the exact letter of his Settlement Week order. Here, the chief judge acted on his own initiative, irrespective of the requirements in MCR 2.401(G) and MCR 2.504(B), in dismissing plaintiffs’ complaints. We believe, therefore, that the chief judge misunderstood the extent of his ability to dismiss cases under MCR 2.401(G). Two other issues also warrant our resolution. We consider the chief judge’s decision to review, consider, and, indeed, rely to some extent on the mediation award in ruling on plaintiffs’ motion to set aside the dismissal to have been inappropriate. Under MCR 2.403(N)(4), the mediation clerk places a copy of the mediation evaluation and the parties’ acceptances or rejections in a “sealed envelope for filing with the clerk of the court.” If the trial court is acting as the trier of fact, it may not open the envelope, and the parties may not reveal the evaluation amount until after the judge has rendered judgment. Id. Although an involuntary dismissal operates as an adjudication on the merits, see MCR 2.504(B)(3), as indicated, we have concluded that for several reasons the chief judge improperly entered the involuntary dismissal order, in which case the chief judge was not entitled to review the mediation evaluations, even though he was not the trial judge assigned to either case. It also appears that justifying denial of plaintiffs’ motion to reinstate on this basis was “boot strapping” under these particular facts. In sum, it is manifest that the contents of a mediation evaluation should not have any effect on a trial court’s resolution of the merits of a case. Finally, there is nothing in the chief judge rule, MCR 8.110, that permits a chief judge of a circuit court to temporarily reassign cases to himself for “Settlement Week” only. MCR 8.110(C)(3)(b) expressly permits the chief judge to direct the apportionment and assignment of the court’s business, subject to MCR 8.111 regarding assignment of cases. MCR 8.111 permits a chief judge to reassign cases “in order to correct docket control problems resulting from the requirements of this rule.” MCR 8.111(D)(4). Nonetheless, even if the chief judge could implement Settlement Week under a broad reading of MCR 8.110(C)(3)(b), unsettled cases would remain assigned to their original judges. The chief judge’s interim and temporary reassignment of the cases to himself for the sole purposes of conducting Settlement Week was not authorized under the court rules. Thus, we hold that the chief judge should not have entered any substantive orders in either of these consolidated cases. In conclusion under the particular facts of these cases, we find that the chief judge abused his discretion: an unprejudiced person, reviewing the evidence before the court, would say that there was no justification or excuse for his automatic dismissal sua sponte of plaintiffs’ longstanding complaints. Further, the chief judge should not have entered any substantive orders in these cases that were not properly assigned to him. We therefore vacate the orders of dismissal and the orders denying reinstatement and remand these consolidated cases back to their assigned judges for further proceedings consistent with the court rules. We do not retain jurisdiction. Specifically, the chief judge stated in his order denying plaintiffs’ motions to set aside the dismissal, more accurately, motions to reinstate: What those [nuisance value mediation] evaluations say is that both cases are, in the judgment of seasoned mediators, very weak cases, that neither plaintiff is likely to establish defendant’s liability. MCR 2.403(K)(4). Had plaintiffs appeared, good faith settlement discussions ensued, and settlement not been achieved, each plaintiff would be entitled to continue with this case, even though the prospects for success do not appear good. However, because those prospects are poor, it is not manifestly unjust to now dismiss these cases because plaintiffs and their counsel did not cooperate with the Court. It would, to the contrary, be unjust to reinstate these cases, thereby ignoring a failure to cooperate with the Court and, taking time away from some other case where there had been compliance with court orders. When there are very real questions about the viability of a case, it is not unjust to end that case as authorized by the rules when the plaintiff does not proceed appropriately. It may be that dismissing a strong case is not unjust when the plaintiff has ignored a settlement conference. Efforts to resolve cases are essential to the fair and orderly handling of crowded dockets, and standing up a court may forfeit any right to complain when the rules are enforced. Cf., Hearn v Schendel, 355 Mich 648, 653 [; 95 NW2d 849] (1959). That issue need not be confronted in these cases, however. Dismissing cases which the mediation process has identified as lacking in merit is not unjust. .. . This year’s Settlement Week was equally successful, resulting [in] 55% of the cases summoned, including several which would have taken 6-8 weeks to try and which settled for very large sums of money. Not dealing sternly with plaintiffs’ failures to appear would undermine the effectiveness of an extremely useful tool for preserving access to the courts. It is not merely a matter of expediting settlements or docket control. Good docket management and settlements open up time for those cases which need it. [Emphasis added.] Because it is not our role, we express no opinion regarding whether the Michigan Court Rules should be modified to facilitate the holding of “Settlement Weeks.” While MCR 2.313 is supported by existing caselaw affirming the discretionary power of the court to dismiss an action or to enter a default judgment against a party who fails to comply with the discovery rules or who violates a court order mandating discovery, that same caselaw indicates that those procedural sanctions are a “drastic" step, and should only be imposed for flagrant and wanton actions by a party. The willful, that is intentional, refusal of a party to comply with court ordered discovery would support such drastic steps. [2 Martin, Dean & Webster, Michigan Court Rules Practice, p 367 (emphasis added).] While this error may have been harmless, given the statements that the chief judge made in his order denying plaintiffs’ motion to set aside the dismissal, we continue to believe that it was highly irregular for the chief judge to publicly reveal the mediation award. Neither the mediation briefs nor the mediation evaluation are available to the trial court for its review, so we see no purpose to be served by his review of the evaluation other than to give the appearance that cases with a high mediation award for plaintiffs would be less susceptible to dismissal under MCR 2.401. This untenable appearance should be avoided at all costs. We are aware of at least one recent unpublished opinion of this Court that reaches the opposite conclusion. It lacks precedential value. Moreover, we do not accept either its reasoning or its result. Vanderploeg v Parisian, unpublished opinion per curiam of the Court of Appeals, issued June 5, 1998 (Docket No. 196555).	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Mackenzie, J. This is a class-action suit brought, in relevant part, under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., by female prisoners housed in facilities operated by the Michigan Department of Corrections (mdoc). Defendants are the department, its director, and several wardens, deputy wardens, and corrections officers employed by the MDOC. Defendants appeal by leave granted from a circuit court order denying their motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). We affirm. The case arises out of allegations that male corrections personnel have systematically engaged in a pattern of sexual harassment of female inmates incarcerated by the mdoc. Specifically, plaintiffs’ complaint alleged that the mdoc assigns male officers to the housing units at all women’s facilities without providing any training related to cross-gender supervision; that women are forced to dress, undress, and perform basic hygiene and body functions in the open with male officers observing; that defendants allow male officers to observe during gynecological and other intimate medical care; that defendants require male officers to perform body searches of women prisoners that include pat-downs of their breasts and genital areas; that women prisoners are routinely subjected to offensive sex-based sexual harassment, offensive touching, and requests for sexual acts by male officers; and that there is a pattern of male officers requesting sexual acts from women prisoners as a condition of retaining good-time credits, work details, and educational and rehabilitative program opportunities. The complaint also alleged that the inmates were subject to retaliation for reporting this gender-based misconduct. Plaintiffs claimed that these actions, and defendants’ failure to protect female inmates from this misconduct through adequate training, supervision, investigation, or discipline of mdoc employees, constitute gender-based discriminatory conduct, sexual harassment, and retaliation in violation of the Civil Rights Act. They sought injunctive and declara tory relief, their initial claim for monetary damages having been ordered dismissed. i The purpose of the Civil Rights Act is to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Noecker v Dep’t of Corrections, 203 Mich App 43, 46; 512 NW2d 44 (1993). The act is remedial and must be liberally construed to effectuate its ends. Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993). Article 3 of the Civil Rights Act prohibits discrimination in public accommodations and public services. Subsection 302(a) states: Except where permitted by law, a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status. [MCL 37.2302(a); MSA 3.548(302)(a)]. Section 103 of the act, MCL 37.2103; MSA 3.548(103), declares that sexual harassment is a form of sex discrimination. Section 301 defines “place of public accommodation” and “public service” as those terms are used in subsection 302(a). It states: (a) “Place of public accommodation” means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public. .. . (b) “Public service” means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political division, or an agency thereof, or a tax exempt private agency established to provide service to the public. [MCL 37.2301; MSA 3.548(301)]. Finally, § 303 of the act creates an exemption under article 3 for private clubs: This article shall not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the private club or establishment are made available to the customers or patrons of another establishment that is a place of public accommodation or is licensed by the state. . . . [MCL 37.2303; MSA 3.548(303)]. In denying defendants’ motion for summary disposition with respect to plaintiffs’ Civil Rights Act claim, the trial court ruled that the mdoc is a “public service” agency prohibited from engaging in gender-based discrimination or harassment under subsection 302(a) of the act. The court further noted that the act does not specifically exclude prisoners from its coverage and declined to read such an exclusion into the act. n The narrow issue before us is whether the mdoc correctional facilities are places of “public service” in which discrimination against inmates, based on sex, is prohibited. The United States Supreme Court’s recent decision in Pennsylvania Dep’t of Corrections v Yeskey, 524 US_; 118 S Ct 1952; 141 L Ed 2d 215 (1998), leads us to conclude that the mdoc facilities are places of “public service” within the meaning of subsection 301(b). The question in Yeskey was whether a state prisoner could maintain a claim against a state department of corrections under another civil rights statute, the Americans with Disabilities Act of 1990 (ada), title II of which prohibits discrimination by a “public entity” against individuals with a disability. 42 USC 12132. The statutory definition of “public entity” at issue in Yeskey is similar to the definition of “public service” set forth in subsection 301(b): “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 USC 12131(1)(B). Writing for a unanimous Supreme Court, Justice Scalia held that “the statute’s language unmistakably includes State prisons and prisoners within its coverage.” 118 S Ct 1954. Emphasizing the broad statutory language, the Court stated that “the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt.” Id. The Court therefore concluded that “[s]tate prisons fall squarely within the statutory definition of ‘public entity’. ...” Id. The Supreme Court’s reasoning in Yeskey applies equally to this case. Under subsection 301(b), a “public service” includes “a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state . . . .” The MDOC is a state agency, and this state’s correctional facilities are operated by it. Any “exception that could cast the coverage of prisons into doubt,” 118 S Ct 1954, is conspicuously absent from the unambiguous statutory language of the Civil Rights Act. Thus, under the plain language of subsection 301(b), the MDOC clearly falls within the broad statutory definition of a “public service.” Defendants essentially concede as much. Defendants argue that even if the MDOC is a “public service,” its prisons are nevertheless not required to comply with subsection 302(a) of the Civil Rights Act because they fall within the § 303 exemption for “private club[s], or other establishments] not in fact open to the public.” We reject this argument. The fact that the MDOC operates buildings that are not fully open to the public does not mean that the MDOC itself is a “private club or other establishment” not open to the public. There is a distinction between a state agency and the buildings that house that state agency. There are presumably many departments of state government (this Court included) that operate facilities that members of the public may not enter at their will. This, however, does not mean that those departments themselves are private establishments not open to the public; it merely means that the physical structures used by those departments are not fully accessible to the public. Moreover, “[rjesident inmates are obviously members of the public in a general sense.” Martin v Dep’t of Corrections, 424 Mich 553, 565; 384 NW2d 392 (1986) (Cavanagh, J., dissenting). Our Supreme Court has held that prisoners are members of the public for purposes of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Green v Dep’t of Corrections, 386 Mich 459, 464; 192 NW2d 491 (1971). The Supreme Court has also held that prisoners are members of the public for purposes of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Martin, supra, p 555. Civil rights acts are to be liberally construed to provide the broadest possible remedy. Reed, supra. Only by reading “private club, or other establishment not in fact open to the public” in its most restrictive, literal sense, may a correctional facility be deemed to be “not open to the public.” We therefore conclude that the § 303 exemption does not relieve defendants of the obligation to act in conformity with subsection 302(a) of the Civil Rights Act. m Defendants contend that even if the § 303 exemption does not apply to state-run correctional facilities, subsection 302(a) of the Civil Rights Act was not intended to protect prisoners. Again, we disagree. We begin by reviewing the legislative purpose of the Civil Rights Act in general and subsection 302(a) in particular. Const 1963, art 1, § 2 states: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. The Civil Rights Act was enacted as 1976 PA 453. Its purpose was two-fold. First, it was intended to centralize and make uniform the patchwork of then-existing civil rights statutes applying to the private sector, such as the Fair Housing Act, the Fair Employment Practices Act, and the Public Accommodations Act. See Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 187-188; 387 NW2d 821 (1986). Second, it was intended to broaden the scope of the then-existing civil rights statutes to include governmental action: [T]he Legislature’s addition of “public service” to [subsection] 302(a), thereby including state action violations that amount to constitutional deprivation with private sector, non-state action legislative violations, can be explained by the fact that article 1, § 2 of the Michigan Constitution provides: “the legislature shall implement this section by appropriate legislation.” It is the only provision of the Declaration of Rights to provide so. [Id., p 188 (emphasis in the original).] Thus, insofar as subsection 302(a) of the Civil Rights Act governs “public service,” it is essentially a codification of the constitution’s Equal Protection and Antidiscrimination Clauses, broadened to include categories not covered under the constitution, such as age, sex, and marital status. See Dep’t of Civil Rights, pp 188-189. The constitutional equal protection guarantee applies to prisoners. As explained in Jackson v Bishop, 404 F2d 571, 576 (CA 8, 1968): Lawful incarceration may properly operate to deprive the convict of certain rights which would otherwise be his to enjoy. A classic example is [the] denial to the felon of the right to vote. . . . On the other hand, a prisoner of the state does not lose all his civil rights during and because of his incarceration. In particular, he continues to be protected by the due process and equal protection clauses which follow him through the prison doors. [Citations omitted.] Because, as our Supreme Court has stated, the protections of subsection 302(a) of the Civil Rights Act were intended to be coextensive with the Equal Protection and Antidiscrimination Clauses of the Michigan Constitution, and because prisoners do not lose their right to equal protection by virtue of their status as inmates, we can only conclude that the Legislature also intended all persons — including inmates — to be protected under subsection 302(a). Further, as noted by the trial court, nowhere does the language of the Civil Rights Act purport to preclude its application because of a person’s status as a prisoner or inmate. Compare Walters v Dep’t of Treasury, 148 Mich App 809, 819; 385 NW2d 695 (1986); Marsh v Dep’t of Civil Service, 142 Mich App 557, 569; 370 NW2d 613 (1985). When the Legislature has seen fit to exclude prisoners from the provisions of a statute, it has specifically done so. See, e.g., MCL 15.231(2); MSA 4.1801(1)(2), excluding “those persons incarcerated in state or local correctional facilities” from provisions of the Freedom of Information Act. A court must not judicially legislate by adding into a statute provisions that the Legislature did not include. Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 421; 565 NW2d 844 (1997). Accordingly, we decline to read into the Civil Rights Act an exclusion barring prisoners from bringing an action under subsection 302(a). IV Defendants suggest that any holding that the Civil Rights Act applies to prisoners will unacceptably impair the MDOC’s corrections responsibilities. Their fear is unwarranted. At least to the extent that a state agency’s conduct is at issue, the protections of subsection 302(a) of the Civil Rights Act were intended to be coextensive with those of the Antidiscrimination and Equal Protection Clauses of the constitution. Dep’t of Civil Rights, supra, p 188. As our Supreme Court stated in Dep’t of Civil Rights, supra, p 189: Discrimination, in constitutional terms, refers to baseless and irrational line drawing. . . . When there is a sufficiently important governmental interest and the classification is adequately related to that interest, it does not amount to discrimination to draw legislative lines on the basis of those classifications. It would be anomalous at best and contradictory at worst to attempt to rid the state of discriminatory practices by the use of an arbitrary standard that would prohibit, in effect, any line drawn between the genders, regardless of its relevance to the purpose of the regulation, unless the Legislature, in its wisdom and its own good time, countervails it. Thus, even though we hold that subsection 302(a) prohibits the MDOC from engaging in discriminatory practices in the operation of its correctional facilities, the MDOC may still treat prisoners differently on the basis of gender, provided that the gender-based treatment can pass constitutional muster. As the Court acknowledged in Dep’t of Civil Rights, merely because the state engages in a practice that treats men and women differently, it does not necessarily mean that it engages in unlawful gender discrimination. Rather, the test is whether the gender-based treatment serves a sufficiently important governmental interest and is substantially related to the achievement of that interest. Dep’t of Civil Rights, supra, p 189. The MDOC may therefore treat prisoners differently on the basis of gender without violating subsection 302(a), as long as the gender-based treatment serves important penological interests and is substantially related to the achievement of those interests. This approach to state sex discrimination claims by inmates mirrors not only the analysis employed in equal protection cases, but also the analyses typically employed by federal courts in 42 USC 1983 actions. See anno: Sex discrimination in treatment of jail or prison inmates, 12 ALR4th 1219. Because the MDOC admits that prisoners may bring equal protection claims under § 1983, our holding that prisoners are not excluded from the protections of subsection 302(a) of the Civil Rights Act should impose upon defendants no stricter standards than those to which they must presently adhere in order to survive either a constitutional or § 1983 challenge. v Finally, defendants argue that the Court of Claims, not the circuit court, had subject-matter jurisdiction over plaintiffs’ case. While it is generally true that the Court of Claims has exclusive jurisdiction over “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state” or any of its agencies, MCL 600.6419(l)(a); MSA 27A.6419(l)(a), that exclusivity does not extend to Civil Rights Act claims. MCL 37.2801(1); MSA 3.548(801)(1); Rangel v Univ of Michigan, 157 Mich App 563, 564-565; 403 NW2d 836 (1987). Moreover, a complaint against the state seeking only equitable or declaratory relief must be filed in the circuit court. Watson v Bureau of State Lottery, 224 Mich App 639, 643; 569 NW2d 878 (1997), Silverman v Univ of Michigan Bd of Regents, 445 Mich 209, 217; 516 NW2d 54 (1994). Because plaintiffs no longer are seeking money damages, the circuit court, rather than the Court of Claims, had jurisdiction to consider the Civil Rights Act claims, as well as the remaining equitable and declaratory claims against the mdoc and defendant McGinnis in his official capacity as the director of the MDOC. The circuit court also had jurisdiction over plaintiffs’ Civil Rights Act claims against the remaining individual defendants. MCL 600.6419(l)(a); MSA 27A.6419(l)(a). Moreover, the defendant guards and wardens are not state officers who may be sued in the Court of Claims. Lowery v Dep’t of Corrections, 146 Mich App 342, 349; 380 NW2d 99 (1985); Burnett v Moore, 111 Mich App 646, 648-649; 314 NW2d 458 (1981); Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981). Accordingly, we find no error in the circuit court’s ruling that it had jurisdiction to hearing plaintiffs’ claims. Affirmed. Gage, J., concurred.	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Sharpe, J. In 1922, Stephen Parrish and his wife and Elizabeth Hammerschmidt owned adjoining lots in Giddings’ addition to the city of Grand Rapids. Mrs. Hammerschmidt was preparing to build a garage on her lot. The building where she proposed to erect it so as to gain access thereto from her own premises would obstruct the view from the residence of the Parrishes to Wealthy street. A written agreement was thereupon executed, wherein Mr. and Mrs. Parrish as first parties did let and lease to. Mrs. Hammerschmidt as second party for a period of 99 years “the right to the use jointly with the said first parties” of an automobile driveway for passenger automobiles. The second party agreed therein to “do no parking upon the said premises” and not to “erect any building upon their adjoining premises so as to obstruct the view from the residence of the said first party to Wealthy street, S. E., in said city of Grand Rapids.” It contained the usual provision: “To have and to hold the said premises as above described, unto the said party of the second part, and to her heirs and assigns.” After this agreement was executed, Mrs. Hammerschmidt built her garage with room therein for two machines, and it has been occupied, one part of it continually by an outside party, since that time. On April 10, 1925, Mrs. Hammerschmidt sold her lot to the defendants Heskett, and in writing assigned to them her interest in the lease. After the death of Mr. and Mrs. Parrish, the plaintiffs, Harry B. and Beulah T. Parrish, sold their lot under contract to the plaintiff Church. Heskett rented the use of the garage for one machine from month to month to the defendant Maddox in 1925, and he has used the driveway in question to reach it without interruption until shortly before the commencement of this suit. Some altercation arose between Mr. Heskett and Mr. Church over the latter parking his car along the driveway, which led not only to a war of words but to a fistic encounter between them. Soon thereafter this suit was begun. .Plaintiffs pray for a decree enjoining the Hesketts from permitting any other persons than themselves to use the driveway, and restraining Maddox from using it. The trial court dismissed the bill, and plaintiffs appeal. The purpose of the easement created by the lease was to permit access over the Parrish driveway to the garage Mrs. Hammerschmidt intended to erect. She was not building this garage for her own use, as she had no machine at that time. The lease created an easement appurtenant to her lot, and passed from her to Heskett. Smith v. Dennedy, 224 Mich. 378. Under it her tenants had the right to its use, and such right passed to Maddox under his lease from Heskett. 9 R. C. L. p. 817; 19 C. J. p. 977. The decree is affirmed, with costs to appellees. North, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.	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McDonald, J. The plaintiffs filed this bill to set aside two deeds of conveyance of real estate located in Reading, Hillsdale county, Michigan. The first deed is from Samuella Webster to one Allen G. Ludington. The second deed is from Allen G. Ludington to Samuella Webster, George C. H. Doney, and Lura Doney, his wife. The deed to Mr. Ludington was made so that he might reconvey to the other parties in joint tenancy. Both deeds were executed on the 14th day of March, 1922, and were recorded April 4, 1922. • The theory of the bill is that, at the time of the .conveyances, Samuella Webster was mentally incompetent to convey the property and was unduly influenced by the defendants. When these deeds were executed, Samuella Webster was the widow of Lester Webster, from whom she received the property. Later she married the plaintiff, Edwin Coy. The other plaintiff, Mary L. Kugler, is her niece. The plaintiffs are devisees under the will of Samuella Webster-Coy, and as such bring this action to have the deeds set aside so that the property may be returned to the estate. The defendants are husband and wife. Mrs. Doney was a relative of Mrs. Coy’s former husband, Lester Webster, deceased. On the hearing, the. circuit judge found that at the time of the conveyances Samuella Webster was mentally incompetent and was unduly influenced by the defendant George C. H. Doney. He entered a decree setting aside the con veyances. From this decree the defendants have appealed. After hearing the testimony, the circuit judge filed an opinion as a basis for his decree, in which he said in part: “At this time Samuella Webster was not insane as that term is ordinarily used. As applied to the ordinary affairs of ’her life she was mentally competent, but as applied to business matters she was incompetent to act to protect her own interests, and, as put by Dr. Sladen of the Ford Hospital, she needed some one in whom she could trust to guide and advise her. This is made plain by the fact that she was relieved from her position as administratrix of her husband’s estate due to her incapacity to grasp to any appreciable extent the details of administration*, and the further fact that she was, within ninety days of the date of the conveyances complained of, placed under guardianship, so far as her business affairs were concerned. That, at this time, she was under the fear and control of George C. H. Doney is plainly established; that anything he wanted her to do she did through fear.- “To all appearances, the attitude and conduct of the defendant toward Mrs. Webster, at this time, was kindly, yet one cannot read this record without reaching the conclusion that such attitude and conduct were exercised with an ultimate design upon the property of Mrs. Webster. The actions of defendant George C. H. Doney were not such as should be expected of a trusted friend and guide, one acting in- a close fiduciary relation. The fact that he manipulated the transfer of the automobile and signed her name to the application, and the further fact that he used her own funds, that came to his hands in his fiduciary capacity, with which to put permanent improvements upon property which was ultimately to become his, are evidences of overreaching which a court of equity should not overlook.” The question involved is merely one of fact. It would serve no useful purpose for us to extend this opinion by an analysis of the testimony of the various witnesses. After seeing the witnesses and hearing them testify, the circuit judge determined the issue against the defendants. We have read the record and approve of his conclusions. The decree is affirmed, with costs to the plaintiffs. Clark, Bird, and Sharpe, JJ., concurred.	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Flannigan, J. Defendant Owen was charged with breaking and entering the dwelling house of one Bert Moyer in the nighttime with intent to commit the crime of larceny. The Moyer home is located about 3 miles east of Vicksburg in Kalamazoo county, and is 27 miles from Battle Creek. The property stolen consisted of 2 cans of peppermint oil worth between $400 and $500 and an automatic shotgun. Defendant was convicted and the case is here on exceptions before sentence. The officers investigating the burglary concluded John and Milo Culp were concerned in it. They were arrested and confessed, implicating defendant and one Bert Dabbs. When arraigned 'at the circuit they pleaded guilty and when defendant was brought to trial they were in custody awaiting sentence. They testified as witnesses for the people. Evidence offered by the people was ample to support a finding that all four were present, aiding, abetting, and assisting each other in the commission of the burglary, and that defendant, with the assistance of Dabbs, "broke and entered the house and brought out the property, or that he stood guard on the outside to give warning of the approach of danger. It is undisputed the stolen oil was found in the possession of defendant the following day. The defense was alibi. Defendant introduced testimony tending to show he was at Battle Creek, where he resides, when the burglary was committed. The case was tried on the theory defendant was present at the scene of the crime and personally assisted in its commission. The jury was instructed, in substance, a conviction would be warranted if they found the breaking and entry of the building with intent to steal was the joint undertaking of the four, and that defendant was present with the others when the burglary was accomplished, whether he entered the house or stationed himself on watch outside. With this instruction no fault is found. In a supplementary charge, delivered after the jury had been out for a time and returned to the courtroom for further instruction, the court correctly defined an accessory before the fact; pointed out that the common-law distinction between accessories before the fact and principals had been abrogated by statute, and that persons who aided and abetted the commission of a felony, though not personally present, might lawfully be convicted and punished as principals, and instructed that, if they found defendant was not present at the scene of the crime, they were, nevertheless, at liberty to convict if they further found the burglary was jointly undertaken by him and the others; that he helped plan and arrange for its commission and aided, abetted, and encouraged the others to commit it. To the submission at this stage of the trial of an alternative theory of guilt no exception was taken, but error was properly assigned on the instruction on the ground there was no evidence tending to show defendant an accessory before the fact. At common law, an accessory before the fact is one who was not present, actually or constructively, when the offense was committed, but who counseled, procured, or commanded another to commit it. 16 C. J. p. 134; 1 Wharton’s Criminal Law (11th Ed.), p. 335. Where, as with us, the distinction between ac cessories before the fact and principals is abrogated by-statute so that participants in a crime who would be accessories before the fact at common law are called and punished as principals, it is still necessary to apply the common-law rules in order to determine whether a person who is absent when a crime is committed by another is guilty as a principal under the statute. 16 C. J. p. 134. Assuming the burglary was committed by Dabbs and the Culps, to hold defendant an accessory before the fact, it was essential to establish he counseled, encouraged, or urged them to commit, or in some way aided in the commission of the offense; and that he was not present at its commission. There was evidence tending to establish the element of absence. If, as they had a right to do, they believed the testimony introduced by defendant, the jury was justified in finding he was not present at the commission of the crime, but at Battle Creek, 27 miles away. For the purposes of this discussion, it is proper to assume they did so find. Save for the fact defendant was in possession of the stolen oil within 24 hours after the burglary, for evidence tending to connect him as an accessory before the fact, the sole reliance of the people is upon the witness John Culp. Inspection ‘of his testimony fails to disclose any such evidence. It appeared the witness and defendant were acquainted and once roomed together. August 21, 1926, the day of the burglary, the witness was employed as a truck driver. He quit work at noon, but returned about 1:30 p. m. and took the truck without his employer’s permission. Regarding his subsequent movements that afternoon until he drove out of Battle Creek, he testified: “At 1:30 I went down to my folks’ and stayed there about two hours. No one with me. Then I went to 40 Green street (his rooming house) and saw nobody but the landlady. From there I went .down on Jackson street and saw Harold Owen and Bert Dabbs. I went to Owen’s restaurant in search of Mr. Dabbs. * * * I remained there a half hour. * * * About 4 o’clock I went out and drove up on Upton avenue to get some gasoline. Harold Owen and Bert Dabbs went with me. * * * I got some gas on Upton avenue and went from there to Harold’s house (on Upton avenue) and then back down to the restaurant again. * * * After we drove down town we started out Lake avenue for Vicksburg. I should judge it was then right around a quarter of five. * * * The reason we started off toward Vicksburg in quest of oil is that on the Saturday night before, Bert Dabbs asked him (Milo Culp who was working in the Moyer neighborhood) if he knew anybody who had oil out there. * * * He (Milo) said he didn’t know. * * * Before I left Battle Creek and started for Vicksburg Mr. Owen and I had a talk about where we were going. He said he was going out and try to find some oil. * * * I am the man who furnished the car, furnished the gas and furnished the lunch for this expedition.” The foregoing comprises all the witness testified was said or done by the parties until they separated, defendant, as the jury presumptively found, remaining in Battle Creek, and Dabbs and the witness, in the truck surreptitiously obtained, drove away in the direction of the Moyer residence. Their inquiry of Milo Culp, who did not know of the location of peppermint oil, but who did know that “Bert Moyer was the nearest place that raised it,” and the evidence connecting them with the commission of the offense, justifies the inference Dabbs and the witness, who were rooming together at the time, planned while at Battle Creek an invasion of the Moyer home with intent to steal any oil there found. But if they did it dees not appear by the testimony of John Culp,, or elsewhere in the record, they communicated their intention to defendant, or that he otherwise learned of their criminal purpose; or encouraged them to commit this or any burglary or larceny; or agreed to receive the fruits of any burglary or larceny committed by them; or that a joint enterprise having for its object acquisition of peppermint oil or other form of personal property by criminal means was mentioned by Dabbs or Culp to defendant or by him to them while together at Battle Creek, or previously. If defendant said, as claimed, he was “going out and try to find some oil,” it was in form an innocent declaration. Standing alone, it was consistent with a purpose to obtain oil legitimately rather than illegitimately. Disassociated, as on this branch of the case it must be, from the evidence tending to show his presence at the commission of the offense, the remark is devoid of criminal tinge. Certainly it may not be construed as a suggestion or request they burglarize for oil in his absence for the joint benefit of all three. Considered in connection with the evidence showing defendant’s presence and personal participation, as it might be on the other branch of the case, the remark and all other of the sayings and doings of the parties at Battle Creek would be of weighty significance. But, as serving to connect defendant with its commission when his absence from the scene of the crime is taken for granted, the testimony relied upon by the people becomes colorless. In cases where there is other evidence tending to show the accused an accessory before the fact to a burglary, the jury may consider in connection with it possession by him of the property stolen. But where, as in this case, there is no such other evidence, possession is without probative force. Where the charge is larceny a different rule is applied. People v. Gordon, 40 Mich. 716; Stuart v. People, 42 Mich. 255; People v. Sligh, 48 Mich. 54; People v. McDonald, 163 Mich. 552. In the state of the evidence the instruction excepted to should have been omitted. A count was added, charging defendant under 3 Comp. Laws 1915, § 15293, with breaking and entering the house in the daytime with intent to commit larceny. Defendant’s counsel moved to compel an election between counts, and error is assigned on the refusal of the court to grant the motion. This court has frequently held election between counts cannot be required on the ground distinct offenses are charged where they are committed at the same time and are covered by the same testimony. People v. Warner, 201 Mich. 547, and cases cited. There is no good reason why a different rule should be applied where the distinct offenses spring out of the same transaction and are covered by the same testimony and where guilt of the accused of the one offense or the other depends merely on whether the criminal acts were committed in the daytime or nighttime. The remaining assignments of error have been considered. A number of them are clearly without merit, and such as may be debatable are not likely to arise on another trial. For the error pointed out the conviction is reversed, and a new trial granted. Sharpe, C. L, and Bird, Fellows, Wiest, Clark, and McDonald, JJ., concurred. The late Justice SNOW took no part in this decision.	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Williams, J. Introduction Defendants, by motion, challenged the continuing validity of the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4) in face of "the adoption of the doctrine of pure comparative negligence in Michigan. Placek v Sterling Heights, 405 Mich 638 [275 NW2d 511] (1979). MCL 600.2949 [MSA 27A.2949, 1978 PA 495 — comparative negligence for products liability]”. The ultimate issue, as posited by both plaintiff and defendants, is, in the words of the former’s brief, whether a "verdict rendered against jointly liable defendants is reduced by an amount proportionate to a settling tortfeasor’s percent of negligence [as the defendants and the circuit judge say the doctrine of pure comparative negligence requires] rather than the amount of the settlement [as plaintiff and the contribution-release statute indicates the law requires]”. (Emphasis added.) The defendants argue: "The entire concept of comparative negligence is premised on the concept that fault can be allocated. If fault can be allocated as between a plaintiff and defendants, there is absolutely no logical distinction between that and the allocation of fault as between tortfeasors.” The defendants also argue: "With lack of legislative guidelines following the adoption of comparative negligence, in reaching a decision, this court must look to * * * Conkright”. Conkright v Ballantyne of Omaha, Inc, 496 F Supp 147, 152 (WD Mich, 1980) stated: "I believe that Michigan will adopt an approach under which the comparative fault of a defendant dismissed pursuant to a settlement is determined by the finder of fact, and this proportion of fault is employed to reduce plaintiff’s recovery against nonsettling defendants.” (Footnote omitted.) To begin with, while we do recognize that there is a reasonable relationship between comparative negligence and comparative contribution based on degree of fault, we likewise find that there is no such absolute incompatibility between the two concepts that they cannot coexist. See West v Rollhaven Skating Arena, 105 Mich App 100; 306 NW2d 408 (1981); Bacon v Dep’t of State Highways, 115 Mich App 382; 320 NW2d 681 (1982). Furthermore, we recognize that the law does not contemplate judicial abrogation of constitutional legislative enactments because not reasonably re lated to a judicial decision. Finally, we find no "lack of legislative guidelines” as to legislative intentions concerning comparative contribution based on fault, both prior and subsequent to Michigan’s adoption of comparative negligence. Following these guidelines, we hold that the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4) is still viable. We therefore reverse the judgment of the circuit court. I. Facts This suit arises out of an automobile accident that occurred on June 10, 1976. Deonna Zech was traveling on Grand Mere Road in North Lake Park, Lincoln Township, Berrien County, when her automobile went out of control and struck a guardrail. David Mayhew, who was standing by the creek fishing, was struck by the guardrail, and he fell into the water. As a result, he suffered severe brain damage and other injuries. . David’s mother, Shirley Mayhew, commenced an action against the Berrien County Road Commission and Lincoln Township under negligence and intentional nuisance theories on January 18, 1978. Plaintiff settled with the driver of the automobile before the instant suit was commenced. The amount of the settlement was stated in oral argument to be $50,000, the maximum possible recovery under the driver’s insurance policy. Defendants filed an answer and asserted as an affirmative defense that the negligence of the settling party was a proximate cause of the injury and, thus, their liability should be reduced by the extent of the settling tortfeasor’s negligence. On June 13, 1980, defendants filed a motion for appor tionment of damages among tortfeasors. The trial judge granted the motion on June 18, 1980, and ordered that "the jury be instructed to apportion fault, by percentage, among all those whose fault is found by the jury to have been a proximate cause of the accident and the injuries sustained by David Mayhew, including not only the parties to this action but also including the fault of Deonna Lynn Zech”. The judge further ordered that "the amount of damages, if any, assessed by the jury be reduced by the court by the percentage of fault apportioned to persons other than the defendants and that judgment be entered for the reduced amount”. The judge also stated that the judgment would be joint and several if both defendants were found liable, but that there would be a right to contribution. An application for leave to appeal was filed in the Court of Appeals on September 22, 1980. An application for leave to appeal prior to decision by the Court of Appeals was filed in the Supreme Court on November 3, 1980. Before any action was taken on the applications, plaintiff filed a motion for partial rehearing in light of Weeks v Feltner, 99 Mich App 392; 297 NW2d 678 (1980), but the trial court felt that Weeks did not alter its original order. The Court of Appeals, however, vacated the circuit court’s order of June 18, 1980, and remanded for reconsideration in light of Weeks. The circuit court, on May 22, 1981, reiterated its belief that Weeks did not govern the situation present in the case at hand. An appeal was taken from the circuit court’s instruction on comparative negligence, and, on August 20, 1981, we granted leave to appeal prior to a decision by the Court of Appeals. 411 Mich 1035 (1981). II. Defendants’ Theory Defendants base their argument for comparative fault on the theory that when the State of Michigan adopted the doctrine of comparative negligence, the state, of necessity, adopted the corollary, comparative fault. Furthermore, the defendants argue that comparative fault must apply to all tortfeasors, including settling tortfeasors, which means that plaintiffs total damage recovery must be reduced by the settler’s proportionate share of fault rather than the value of the settlement. In passing, it should be noted that the adoption of comparative negligence in Michigan, judicially by Placek in 1979 and législatively for products liability in 1978, was subsequent to the commencement of this matter on January 18, 1978. The importance of this is that the parties recognize that the current state of the law, rather than the state of the law existing at the time of the accident, controls the conduct of this case. There is no question but that defendants’ argument is not without logic. However, it confronts two stubborn legislative facts. First, as to comparative fault, MCL 600.2925b; MSA 27A.2925(2), at the time of the accident and also commencement of the action, provided in pertinent part: "(a) Their relative degrees of fault shall not be considered.” (Emphasis supplied.) In other words, the Legislature specifically proscribed comparative fault. Second, MCL 600.2925d; MSA 27A.2925(4), in pertinent part, at that time provided and now provides: "When a release * * * is given in good faith * * * [i]t reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release * * * or to the extent of the amount of the consideration paid for it, whichever amount is the greater.” In other words, the Legislature provided and now provides that the total share of damage liability of non-settling tortfeasors should be the entire amount of damages minus the value of the settlement rather than minus the proportionate share of fault of the settling tortfeasor. Confronted with these facts, defendant road commission argued: "The imposition of this [release] statute, which predates comparative negligence, upon a comparative negligence system is ill-conceived and illogical. In no fashion can MCL 600.2925d; MSA 27A.2925(4) be treated as a 'legislated answer’ * * * to the question posed to this Court. An answer cannot logically predate the question.” Both defendants relied on Conkright v Ballantyne of Omaha, Inc, 496 F Supp 147, 152 (WD Mich, 1980), which, in the absence of Michigan judicial precedent and alleged absence of legislative guidelines, attempted to predict the way Michigan law was most likely to evolve as follows: "I believe that Michigan will adopt an approach under which the comparative fault of a defendant dismissed pursuant to a settlement is determined by the finder of fact, and this proportion of fault is employed to reduce plaintiffs’ recovery against nonsettling defendants.” The circuit court’s disposition of the motion in this case, delivered orally, specifically recognized and quoted the statute prohibiting consideration of degrees of fault, MCL 600.2925b; MSA 27A.2925(2), but did not refer to, or consider, the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4). That court preferred to rely on Jorae v Clinton Crop Service, 465 F Supp 952 (ED Mich, 1979), and on Greenwood v McDonough Power Equipment, Inc, 437 F Supp 707 (D Kan, 1977), and reached the conclusion that the joint liability of non-settling tortfeasors would be the amount of the verdict reduced by an amount proportionate to a settling tortfeasor’s percent of fault. III. Analysis Because of 1982 PA 147, this Court has the advantage of pertinent legislation subsequent to that available to the circuit court and the parties. Prior to 1982 PA 147, MCL 600.2925b; MSA 27A.2925(2), as above noted, provided: "(a) Their relative degrees of fault shall not be considered. ” (Emphasis supplied.) 1982 PA 147 amended subsection (a) above to read: "(a) Their relative degrees of fault shall be considered. ” (Emphasis supplied.) In other words, by 1982 PA 147, the Legislature specifically adopted comparative fault. As a consequence, it is unnecessary for this Court to determine whether or not Placek and the comparative negligence for products liability statute, MCL 600.2949; MSA 27A.2949, require a corresponding change to comparative fault in contribution, since the Legislature itself adopted comparative fault in contribution. But the legislative adoption of comparative fault does not necessarily answer the ultimate question in this matter, namely whether the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4), has been superseded by Placek or by legislative action. For convenience, we repeat the pertinent statutory language: "When a release * * * is given in good faith * * * [i]t reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release * * * or to the extent of the amount of the consideration paid for it, whichever amount is the greater.” As a matter of fact, when the Legislature, by 1982 PA 147, amended § 2925b and did not amend § 2925d of the contribution between joint tortfeasors section of the Revised Judicature Act, the Legislature gave this Court a strong signal that it intended § 2925d to remain viable rather than be superseded by inference by Placek or the products liability comparative negligence statute, MCL 600.2949; MSA 27A.2949. We acknowledge that signal and hold § 2925d to be still viable. From this, we conclude that the circuit court adopted the wrong formula in determining the liability of the defendant joint tortfeasors. That court considered the liability to be the total liability of all the joint tortfeasors minus the proportionate liability of the settling tortfeasor; however, §2925d provides, and this Court holds, that the liability of the defendant non-settling tortfeasors is the total liability of the joint tortfeasors minus the amount of the settlement of the settling tortfeasor. Furthermore, the legislative intention expressed in MCL 600.2925d; MSA 27A.2925(4) is in line with this Court’s policy to encourage settlements. While allocation of liability by the tortfeasors’ relative degree of fault is an important goal, it must be considered with the important goal of encouraging settlements. Recognition of both goals is best achieved by reducing the claim against the other tortfeasor by the amount of settlement, as provided by § 2925d. Since California, as Michigan, also adopted comparative negligence judicially, Li v Yellow Cab Co of California, 13 Cal 3d 804; 119 Cal Rptr 858; 532 P2d 1226 (1975), it is interesting to review how it has handled the issue of comparative fault among joint tortfeasors. In American Motorcycle Ass’n v Los Angeles County Superior Court, 20 Cal 3d 578, 604; 146 Cal Rptr 182; 578 P2d 899 (1978), the court reviewed the issue and concluded that the common-law equitable indemnity doctrine should be modified to permit a right of partial indemnity on a comparative basis. The court stated that the contribution statutes did not prevent it from developing the common-law right of comparative indemnity. As we have already remarked, this Court was not confronted with having to consider the possibility of doing this, because the Michigan Legislature adopted comparative fault during the pendency of this appeal. In American Motorcycle Ass’n, it was made clear that joint and several liability was not and need not be abolished because of the adoption of comparative negligence, a matter not contested in the instant case. With particular relevance to the instant case, the California Supreme Court concluded in obiter dictum, "that a plaintiffs recovery from nonsettling tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor’s proportionate responsibility for the injury”. 20 Cal 3d 604. The court reasoned that this approach would be more likely to preserve the incentive to settle claims than would a reduction based on the percentage of fault attributable to the settling tortfeasor. By our decision we agree that the approach taken in California is the most appropriate one and that the verdict rendered by the jury should only be reduced by the amount of settlement, not by the percentage of fault. This is consistent with the ever-important policies of (1) encouraging settle ments and (2) assuring that a plaintiff is fully compensated for injuries sustained. Furthermore, numerous difficulties would be presented if we were to allow the jury to apportion damages among all tortfeasors, including a settling non-party. It would mean that the settling tortfeasor’s liability would be assessed without anyone adequately representing that interest. It would put the plaintiff in a unique trial situation. The plaintiff would not only have to advocate that he was not at fault, he would have to convince the jury that the non-party was only minimally at fault. Otherwise, there might be too great a percentage of fault attributed to the non-party, thus reducing the plaintiff’s recovery. Defendants argue that unless the jury is able to allocate fault among all the parties, collusive dealing between a plaintiff and the settling party will be inevitable. While the opportunity for collusion is always present, the contribution statute, § 2925d, attempts to minimize this problem by requiring a good-faith settlement. There is no reason to believe that this approach will generate any more collusive dealing than may have occurred in the past. We are not persuaded that the judgment should be reduced by the percentage of relative fault as opposed to the amount of settlement. We hold that § 2925d survives the adoption of comparative negligence by this Court. The judgment of the circuit court is reversed. Fitzgerald, C.J., and Kavanagh, Levin, Coleman, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J. "When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 or 2 or more persons liable in tort for the same injury or the same wrongful death: "(a) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide. "(b) It reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater. "(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.” The court in Conkright, while accepting the correlation of comparative negligence and comparative fault, expressly limited its decision to products liability cases and did not decide what effect Placek had on principles of contribution in other areas of tort law. 496 F Supp 150, fn 3. The products liability field is specifically covered by statute. MCL 600.2945-600.2949; MSA 27A.2945-27A.2949. In Weeks, the defendants requested, and were denied, a jury instruction requiring the jury to apportion damages among the various defendants. The Court of Appeals stated that the doctrine of comparative negligence seeks to assure fair and adequate compensation for injured plaintiffs. The Court also stated that while there may be some unfairness in holding the defendants responsible for the fault of their codefendants, this result may occur whether the plaintiff is at fault or not. The court concluded that the doctrine of comparative negligence does not mandate abandonment of joint and several liability. 99 Mich App 395. The trial court did not find Weeks dispositive of the issue presented here, because the issue regarding a settling tortfeasor and the manner in which to reduce the jury verdict was not addressed in Weeks. 1982 PA 147 changed MCL 600.2925b; MSA 27A.2925(2) from “relative degrees of fault shall not be considered” to "relative degrees shall be considered”. It is helpful in analyzing the contribution statutes to use illustrations of typical situations.- The following result would have been reached prior to the amendment of § 2925b: If A, the injured party, were to sue the alleged tortfeasors B, C, and D and recover a jury verdict of $100,000, the following would occur. If A were found to be 25% negligent, then he would be entitled to a joint and several judgment against B, C, and D for $75,000. In determining each person’s pro rata share under the old statute, the total amount was divided by the number of parties. Thus, each would be responsible for $25,000; and if B, C, or D paid more than $25,000, he or she would be entitled to contribution from the other parties for the excess. Under § 2925b as amended, the relative degrees of fault are considered. Thus, if B were found to be 20% negligent, C, 20% negligent, and D, 35% negligent, each would only be responsible for the amount associated with his percentage of fault. Under the doctrine of comparative fault, then, B would be liable for $20,000, C for $20,000, and D for $35,000. This approach reinforces the idea that each party should be fully responsible for his acts and to the full extent to which they cause injury. Comparative fault abolishes the concept of multiple tortfeasors sharing liability equally regardless of fault. Under either the former or the latter form of the statute, defendants would be jointly and severally liable for the entire liability of all the defendants, but their liability to each other would be as indicated. In Jorae, the district court held that 1978 PA 495, the products liability statute, was applicable to the case at hand and that “the legislature did intend to apportion damages on the basis of relative fault between defendants as well as between plaintiffs and defendants in products liability actions”. 465 F Supp 958. Therefore, the court concluded that in a products liability case each joint tortfeasor should pay damages equal to his relative degree of fault. The federal court in Greenwood was faced with the decision of whether to allow the joinder of the owner and operator of an allegedly defective lawnmower when such joinder would destroy the court’s diversity jurisdiction. The court concluded that the joinder should be denied, but that the defendant’s amount of liability should be determined in relation to the amount of fault attributed to the non-parties. The result that would be reached under the trial judge’s instructions to the jury and that reached under § 2925d is very different. An example is helpful. If the jury were to be instructed to apportion liability among all tortfeasors, including the settling tortfeasor, as in this case, the following would occur: The jury would return with a total verdict, for example, $100,000, and the percentage of liability attributed to each tortfeasor: A, the injured plaintiff, 25% negligent, B, the settling tortfeasor, 25% negligent, C and D, defendants, each 25% negligent. If A had settled with B for $10,000, then A would recover $60,000, $50,000 as a joint and several judgment against C and D and the $10,000 settlement reached with B. The $100,000 judgment is reduced by A’s contributory negligence and B’s degree of fault. Thus, A would receive $60,000 for injuries the jury felt were worth $75,000. On the other hand, if § 2925d were applied, then the claim against the defendants is reduced by the amount of settlement, not by the percentage of fault. Thus, in the above example, A would be entitled to recover a joint and several judgment of $65,000 against C and D plus the $10,000 settlement reached with B, or a total of $75,000. As between C and D, their equitable shares of liability would be determined on the basis of their relative degree of fault, in accordance with § 2925b. The Michigan Court of Appeals has dealt with this issue most recently in Bacon v Dep’t of State Highways, 115 Mich App 382; 320 NW2d 681 (1982). See, also, West v Rollhaven Skating Arena, 105 Mich App 100; 306 NW2d 408 (1981). These cases held, we believe correctly, that the contribution statute which permits a reduction in the verdict by the amount of settlement as opposed to a reduction by percentage of fault was still applicable even after the adoption of comparative negligence.	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Quinn, P. J. The paramount issue in this controversy is whether plaintiff or Clara Raven is to be medical examiner of Wayne County. The factual background is: Early in 1967, the Wayne County medical examiner died suddenly. The county board of super visors designated Clara Raven, a deputy medical examiner for several years, acting medical examiner. March 30, 1967, the following resolution was passed: “Resolved, by the Board of Supervisors of the County of "VVayne, this 30th day of March, 1967, that John P. Burton, M.D., be and he hereby is, provisionally appointed as acting medical examiner for Wayne County, effective April 3, 1967, said appointment to be on an interim basis until such time as the medical examiner position may be filled through civil service procedures, and be it further “Resolved, that the Wayne County Civil Service Commission be and it hereby is requested to approve this provisional appointment, and be it further “Resolved, that the Civil Service Commission be and it hereby is requested to take immediate and appropriate steps towards the development of an eligible list from which the appointment of a medical examiner may be made on a permanent basis by this board, and be it further “Resolved, that the chairman of this board be and he hereby is authorized to sign all necessary documents on behalf of this board as appointing authority to effectuate the terms of this resolution.” Pursuant thereto, plaintiff assumed the office of medical examiner April 3,1967 and retains the office to this date. June 14, 1968, the civil service commission gave a promotional examination for the purpose of developing an eligibility list from which to fill the office of medical examiner. Plaintiff and Clara Raven were the only persons who took the examination. After evaluating the examinations, the commission determined that Clara Raven was first and prepared to certify her as the only eligible candidate for the appointment. June 21, 1968, plaintiff filed his complaint for injunctive relief against the commission on the basis that the factors included by the commission and the methods used in computing examination scores were illegal, and if proper factors and methods had been used in computing the examination scores, he would have been first. On the filing of this complaint, plaintiff obtained an ex parte order restraining the commission from using the eligibility list or from certifying any name therefrom for the position of medical examiner. OCR 1963, 718.2 was not complied with in obtaining the ex parte restraining order. It was dissolved September 16, 1968 as improvidently granted, and on October 17, 1968, the commission certified Clara Raven to the board of supervisors as being first on the promotional list. July 10,1968, Clara Raven was permitted to intervene and her answer contained a motion to dismiss the complaint as prematurely brought because plaintiff had failed to exhaust his administrative remedies before seeking relief in court. This motion has never been specifically ruled on by the trial court. Administrative remedies must be exhausted before judicial relief is sought. Bennett v. City of Royal Oak School District (1968), 10 Mich App 265. On the record before us we are unable to determine whether plaintiff has exhausted his administrative remedies. Normally on such a record, we would remand to the trial court for a determination of this question, but other aspects of this litigation lead us to a different conclusion. By bringing this action as he did, plaintiff prevented completion of the administrative process of appointment. Conceivably, had that process been completed, no court action by plaintiff would have been required. The statute, CLS 1961, § 38.415 (Stat Ann 1961 Rev § 5.1191 [15]), gives the appointing authority the choice of appointing the person certified or to make an original appointment. The jurisdiction of the trial court is questionable due to the form of plaintiff’s action. Review of civil service commission action is by certiorari, Bischoff v. County of Wayne (1948) 320 Mich 376, presently, superintending control, GCR 1963, 711.3. By finding that the examination results were not affected by the application of factors and methods attacked by plaintiff in his action, and the record supports such finding, we believe the question of the propriety of using these factors and methods is moot. Por these reasons, we decline to decide the serious and substantial issues raised by the appeal and cross-appeal. We find a more appropriate solution to be that the administrative appointment process be completed before it is challenged in court. Reversed and remanded for entry of an order dismissing plaintiff’s complaint, intervening defendant’s cross-complaint and denying defendant’s prayer for affirmative relief. No costs are awarded. All concurred.	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Fitzgerald, J. This appeal encompasses three separate lawsuits which were consolidated for trial, decision, and appeal. These actions challenge the validity of certain special assessments made by the defendant city in 1968 to finance improvements on Inkster Road and Cherry Hill Road. The facts, basically agreed, upon by the parties, reveal the following: In determining the assessments along Inkster Road, a total footage was utilized that was the sum of the assessable public and private lands abutting Inkster Road. Excluded from this figure was the footage contained within the intersections of abutting streets and alleys. This excluded amount equalled approximately 10% of the assessed total." The total footage was divided into the cost and resulted in an assessment of $29.50 per foot for property fronting on Inkster. Residential property was assessed for the first 40 feet at $18.10 per foot for property siding on Inkster. Certain interior property on the northeast quarter of the Inkster improvement was assessed at the flat rate of $39.68 per house. Finally, a certain church was assessed at $18.10 per front foot instead of $29.50. The assessment on Cherry Hill Road was made in a similar manner. Again, the width of intersecting roads and alleys was not computed in determining the per foot assessment. The result was an assessment of $36.08 per foot. The residential property siding on Cherry Hill was again subject to a reduced assessment for only the first 40 feet at $18.10 per foot. Plaintiffs’ objections to the local authorities were denied. An injunction was then sought by plaintiffs to prevent the assessments. The parties agreed that the show cause hearing would be a final determination of this matter on the merits. After hearing testimony on behalf of both sides, the trial court determined that there was a need for the road improvements and that the improvements would result in special benefits which would accrue to the neighboring landowners, including plaintiffs. Therefore, the various assessments were valid. From this determination plaintiffs present this appeal. Plaintiffs raise three issues. Defendants accept two, but reject the third, which, in actuality, is not properly before us. The viable issues can be stated as follows: A. Whether the trial court’s finding of fact regarding the existence of special benefits was erroneous. B. Whether the trial court’s determination that the assessment variances were valid was erroneous. On the first issue, plaintiffs argue that the trial court must find that special benefits exist in order to allow special assessments to be made on certain property. Fluckey v. City of Plymouth (1960), 358 Mich 447. Special benefits require an increase in value, relief from a burden, or the creation of a special adaptability in the land. 63 CJS, Municipal Corporations, § 1371, p 1128. They claim that when these general principles are applied to the instant case, the testimony is inadequate, and that the testimony of the defendants’ witnesses failed to establish any special benefits. On the other hand, the plaintiffs say their witnesses established (a) that there was no need for the work, and (b) that the result of any work would be detrimental. In response, defendants do not argue with the initial statements of law advanced by the plaintiffs, but rather examine the testimony of their witnesses. Bach of the witnesses testified that either special benefits exist or that the method of assessment is acceptable. The defendants then conclude that the trial court’s finding of fact was not erroneous.. There was testimony on the record which, if believed, could be used as the basis for the trial court’s finding of fact. One of the defense witnesses was Mr. Elmer E. Mueller, Assistant Director for the Detroit City Planning Commission. Part of his testimony was as follows: “The Witness: I contend that there was, your Honor, a definite benefit to the abutting property owners, and I think I cited some of the factors that are relevant to such a determination, the provision for better drainage, elimination of an unsatisfactory situation between the pavement and sidewalk, the providing of the safety to the particular abutting properties, the people that use the abutting property because of the separation by curbing between the improved highway and the remainder of the road, by the elimination of the gravel portion of the roadway where it was used for parking which created a:‘traffic hazard which might be detrimental to the aDutting property and the public as a whole, and the people that use the pavement facility that was abutting the highway were subjected to traffic hazards because they came in and out of the area of the, street that was used for parking, and it improved the general appearance of the highway. “An improved highway as was done here — when you drive east on Cherry Hill to the City of Inkster and notice' the difference in the character of the city — 'the aesthetics of it have been improved. ‘“The Court: [Y]ou feel that over and above the general benefit to the community there is a reasonably substantial benefit to the abutting property owners ? “The Witness: I think that it is a major benefit.” ' This' Court may not upset a finding of fact unless it,is clearly erroneous. GCR 1963, 517.1; Zitomer v. Kelmenson (1965), 375 Mich 206. Since there was testimony which could act as its basis, the finding of a special benefit is not clearly erroneous. ’’ On issue fwu, in challenging the special assessments' for Inkster Road, plaintiffs raised five claims of variances. Plaintiffs argue that the charges assessed for benefits must be in proportion to the charges levied against others in the assessment district as well as to all.,who will benefit from the improvement. I. H. Gingrich & Sons v. City of Grand Rapids (1932), 256 Mich 661; Crampton v. City of Royal Oak (1961), 362 Mich 503. However, both assessment districts contain a number of variances. ' First, they demonstrate a decrease to $18.10 per foot for residential property. Defendants responded by' saying this was a nonresidential area. Since only three of 188 lots were in an area classified as one-family residential, it is not for the Court to say that there was not less benefit accruing to these landowners. The second variation was the decreased assessment for the church. Defendants did not respond to the prima facie inequality established by plaintiffs. The third variation was in the flat figure assessed to houses in the northeast quadrant. The prima facie case of plaintiffs was not answered by defendants. The fourth variance was the failure to include the width of intersections in determining the per foot cost. Defendants responded that this amount was divided among the accessible roads. However, an examination of the zoning map establishes that this is not so. The fifth was the variance between the amount authorized by the Inkster City Council and the amount assessed. Defendants did not respond to this variance. Plaintiffs’ objections regarding the Cherry Hill assessment were that again intersections were not included and that residential property was assessed at a lower rate. The responses made by defendants to the Inkster assessments were applicable here and the Cherry Hill assessment district is free from attack. Nor does plaintiffs’ citation of Michigan statute alter this conclusion. MOLA § 67.19 (Stat Ann 1961 Bev § 5.1303) refers to fourth-class cities. Inkster, with a population of 38,000, is not governed by that statute. A review of the law applicable to this appeal establishes that the defendant city had the authority to make the improvements contracted. The trial court made a finding of special benefits which jus tified the existence of a special assessment distinct. This finding had a factual basis and is not clearly erroneous. More important is the manner in which the different assessment rates were determined. A review of -defendants’ objections to the Cherry Hill Road assessments established that they are not in violation of any principle of law. However, a review of the Inkster Road assessments demonstrates several' problems, that call for reversal. Fiist, the reduction of the church assessment, though perhaps valid, is unsupported before this Court. Second, there is not a uniform charge per interior home in the different quadrants. The northwest quadrant .contained residences equidistant from Inkster 'with the northeast quadrant. The southeast quadrant is entirely dependent upon Inkster Road for ingress and egress. The northeast quadrant, however, has access to Cherry Hill Road. Yet only the northeast quadrant was assessed. Third, the costs of the intersecting streets and alleys were neither apportioned among the city at large nor among all the interior residences which gained greater access to ingress and egress. Fourth, the city assessor did not comply with the total assessment authorized by the council. We conclude that though the improvements conferred benefits on the property owners, the method of assessing was -improper. Reversed and remanded for further .proceedings, retaining no jurisdiction. No costs, a public question. All concurred.	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Danhof, J. Grosse Ile Township is made up of a rather large island called Grosse Ile, of about 5,704 acres, together with several smaller islands which surround it. One of the islands south and a little west of Grosse Ile is known as Celeron Island. It consists of about 184 acres of which about 124 are above water. Natural or semi-natural canels run through it. It is owned by the Celeron Island Corporation, a Michigan corporation, which plans to subdivide and develop the island for summer residence use in the form of summer cottages and recreational uses incident thereto. On October 27, 1914, the Wayne County Board of Supervisors passed a resolution splitting off an easterly portion of Monguagon Township and thereby creating the township of Grosse lie. The salient portion of that resolution reads: “Resolved, ordered and enacted as follows: That the township of Monguagon be and the same is hereby divided, and a new township be and the same is hereby erected in said county of Wayne, which shall be designated as the township of Grosse He, and shall consist of all of that portion of said township of Monguagon lying easterly of the center of the channel of the westerly or American channel or branch of the Detroit River and including Calf Island, so-called in said channel, as indicated upon the map aforesaid.” Attached to the resolution is a map of Monguagon Township which does not disclose Celeron Island on it. Plaintiff commenced its action by complaint and order to show cause requesting a preliminary injunction against the defendant. The defendants filed their answer and the municipal defendant, Grosse lie Township, filed a counterclaim seeking an injunction pendente lite and a permanent injunction at trial restraining the plaintiff from continuing to dredge or otherwise alter the natural terrain of Celeron Island except in accordance with the dredging permit issued by the township of Grosse He. There was an initial hearing before the trial court on March 25, 1968, in which counsel argued the respective positions of the litigants, Each sought a preliminary injunction. Plaintiff sought to enjoin the defendant from exercising any governmental control over Celeron Island, including taxation, because of the absence of jurisdiction predicated on the position that Celeron Island was not part of the township of Grosse lie; and conversely, Grosse Ile Township took the position that Celeron Island was part of the township, that it was subject to regulation by the township and that a preliminary injunction should issue prohibiting the plaintiff from proceeding with development in disregard of township regulation. At this hearing defendant Grosse Ile Township offered Harold Glassford to testify as an expert map maker. After being qualified, Mr. Glassford testified that the map attached to the Wayne county supervisors’ resolution was accurately drawn except that Celeron Island was left out; that he could not tell if the map maker intended to exclude Celeron Island; that Celeron Island lies to the east of the thread of the stream; and that the thread of the stream is the deepest part of the stream which would represent the American channel. It was stipulated that private claim 53 was granted by the United States government to Sarah Macomb early in the nineteenth century and included not only Grosse Ile but five surrounding islands, of which Celeron Island was one. At a further hearing on April 29, 1968, the trial court advised counsel for the respective parties that he had considered the briefs submitted by each side and that a temporary injunction would issue as requested by the plaintiff. On November 30, 1968, the trial court denied defendant’s motion to advance and granted plaintiff’s motion for summary judgment. The trial court assumed as a fact that Grosse lie Township had been collecting taxes on Celeron Is land for 45 years, but made no determination as to where Celeron Island belonged in terms of political boundaries, but only that it was not within the political boundaries of G-rosse lie Township. The court did not require a bond and made no disposition of taxes deposited with the Wayne County clerk pending final disposition of the case. Unfortunately, all parties requisite to complete determination of the central question, namely, what is the political status of Celeron Island, were not brought before the trial court. Therefore, we must reverse and remand the cause to the circuit court for the county of Wayne with instruction that the court order joinder of all the necessary parties, including, but not limited to, the state of Michigan, Browns-town Township, Monguagon Township or the successor to the remainder thereof after the partition of October 27,1914, the city of Gibraltar and the county of Wayne, as provided in GCR 1963, 205.2. The trial court is ordered to make such determinations as are necessary for complete and equitable relief including a decision as to the political status of Celeron Island and the disposition of the taxes paid by the plaintiff to the Wayne County clerk’s office. Additionally, the trial court is directed to take such action as it may deem necessary to prevent irreparable harm to Celeron Island and its environs until a final decision is reached. Defendant’s proposed exhibits A-l, A-2, A-3 and A-4, being map extracts from a tract book Evolution of Wayne County maintained by the Wayne County tract index department, were denied admission. They were offered for the purpose of showing that that department of the county of Wayne had treated Celeron Island as being part of the township of Grosse He since 1914. Defendant argued that this was supportive of the doctrine of long acquiescence in political boundaries. See Village of Elberta v. City of Frankfort (1956), 347 Mich 173, and Auditor General v. Klenk (1968), 381 Mich 255, where that doctrine was considered a decisive factor. The trial judge denied admission of the exhibits on the basis that they were irrelevant since the rule of long acquiescence in. political boundaries is based on how the parties directly involved considered themselves and not on how others may have considered them. We think that ruling was correct as it pertained to the current parties. However, with the addition of new parties this ruling should be reexamined if the exhibits are again offered by the defendant. Reversed and remanded for proceedings in accordance with the foregoing opinion. We do not retain jurisdiction. All concurred.	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J. H. Gillis, J. This is a trip and fall case. Plaintiff Hester Pigg sustained serious injuries-when she tripped and fell on torn carpeting that covered tbe floor of a ballway outside ber apartment. Tbe apartment building was owned by defendants Harry and Beatrice Bloom. Plaintiff commenced suit against defendants, alleging that sbe fell as a result of defendants’ negligence; specifically, it was alleged that defendants failed to repair torn carpeting covering tbe ballway floor outside plaintiff’s apartment in breach of tbeir duty to maintain tbe building’s common areas in a reasonably safe manner. Defendants’ answer denied negligence. By way of affirmative defense, defendants alleged that tbe fall was occasioned solely by tbe negligence of tbe plaintiff. It was alleged that plaintiff failed to observe the torn carpeting in breach of her duty to exercise reasonable care for her own safety. Trial was to the court, sitting without a jury. At the close of plaintiff’s proofs, defendants moved for a directed verdict on the ground that, as a matter of law, plaintiff was guilty of contributory negligence. The trial court agreed and entered a judgment of no cause of action in defendants’ favor. On appeal, the only question we need answer is whether the trial court erred in ruling that plaintiff was contributorily negligent as a matter of law. On a motion for directed verdict, it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the trier could reasonably find a verdict contrary to the moving party. The principle is well established. See Blazo v. Neveau (1969), 382 Mich 415. It is also well established that, on appeal, the standard to be applied in reviewing the direction of a verdict on the ground of contributory negligence is whether, upon favorable-to-plaintiff view of the evidence, all reasonable men would agree that plaintiff was guilty of contributory negligence. Budman v. Skore (1961), 363 Mich 458; Ingram v. Henry (1964), 373 Mich 453, 455, and cases there cited. In the present case, the trial judge summarized the evidence as follows: “The particular accident occurred at 8:30 a.m. on the morning of April 10, 1965. Plaintiff was dressed in house slippers, the type where one slips her foot into the slippers, and took approximately three steps before she fell. She had been chatting some two minutes with other apartment dwellers before she fell and had in one arm a stack of newspapers for the week. “As she déscribed the accident, she took one step toward the front while looking back, and when she made that first step her foot went under the rug and she pitched forward. * * * “Introduced into evidence were pictures of the carpeting and the opening or slit in the carpeting which graphically described the worn portion of the carpeting. There was an opening some five to sis inches wide into which plaintiff’s foot went before she pitched forward and sideways. She concedes that she did not look down at the floor before she fell and in fact was looking to the back as she chatted with another tenant or tenants. She also conceded that some six to seven months before she had reported the defective and worn condition of the carpeting when she had noticed a smaller separation. “We believe that Brown v. Grell, 369 Mich. 628, is controlling. There plaintiff tripped over a loose metal strip on a stair landing on defendant’s premises which caused her injuries incident to a fall down the stairwell. She was held to be contributorily negligent as a matter of law, where the condition was one of which, she had known for more than two years and where she had tripped before by reason of catching her heel. In our case plaintiff knew of the defective condition, in fact had complained about it six months or so before this incident and must have been aware that the condition could not have improved with time since the repairs had not been made. So far as the lighting, the lighting was not the cause of the happening of this accident since she was not looking forward at the time and was in fact, by her own admission, conversing with another tenant or tenants and looking backward over her shoulder. * * * ” The trial judge concluded: “Certainly the defendant was negligent and did not provide a reasonably safe place for his tenant or tenants, bnt at the same time, under the facts of this case, we must bold that plaintiff was contributorily negligent under the authority of Brown as well as Jones v. Michigan Racing Association (1956), 346 Mich 648, and Yearsley v. City Bank (1960), 361 Mich 574. A judgment of no cause of action may be entered.” For reasons hereafter discussed, we reverse and remand for trial. On the record before us, the question of plaintiff’s contributory negligence at the time of the fall was one for the trier of fact. On appeal, plaintiff does not question the trial court’s finding that at the time of the fall she was not looking at the floor. Nor does plaintiff contest the fact that she had notice of the defect. It also appears from the record that plaintiff considered the torn carpeting to be dangerous. Nevertheless, plaintiff contends that these facts alone do not warrant a finding that, at the time of the fall, plaintiff was contributorily negligent as a matter of law. Plaintiff relies on Uren v. Toth (1966), 5 Mich App 170. Defendants argue that plaintiff’s contributory negligence was glaring. Plaintiff, we are told, exerted no effort whatsoever to avoid a condition that she knew was present and considered dangerous. The accident would not have happened if she had momentarily looked and then simply stepped over or squarely on the separation. Defendants reiterate their contention, accepted by the trial judge, that this case is controlled by Brown v. Grell (1963), 369 Mich 628. Finally, defendants suggest that we need not consider whether plaintiff was contributorily negligent as a matter of law. It is argued that the trial judge treated the issue of plaintiff’s negligence as a question of fact, resolving that issue against plaintiff while sitting as trier of fact. We treat this latter contention first. After reviewing the record and the trial court’s opinion in this case, we are satisfied that the trial judge considered plaintiff contributorily negligent as a matter of law. Although the matter is not entirely free from doubt, we reach this conclusion for the following reasons. It is apparent from the opinion of the trial judge that he viewed Brown v. Grell, supra, as controlling. In Brown, plaintiff was held to be contributorily negligent as a matter of law— a disposition specifically noted by the trial judge in his opinion filed in this case. The trial judge also relied on Jones v. Michigan Racing Association (1956), 346 Mich 648. Again, in Jones, plaintiff’s contributory negligence was resolved as a matter of law. See 346 Mich at 650. In light of the trial judge’s reliance on cases which resolved issues of contributory negligence as a matter of law, we can only conclude that the trial judge here acted likewise, holding plaintiff guilty of contributory negligence as a matter of law. In like cases arising in the future, we think it advisable that the trial bench, when sitting without a jury, make clear on the record whether they have acted as a matter of law, or as trier of fact, in entering judgments of no cause of action. We proceed to the merits. The question is: Can it be said that plaintiff was contributorily negligent as a matter of law? The facts, as summarized by the trial court, support the conclusion that at the time of her fall plaintiff’s attention was distracted. Immediately prior to the fall, plaintiff was chatting with a fellow tenant, one William Green. Plaintiff testified at trial that Mr. Green initiated the conversation. On cross-examination, plaintiff testified as follows: “Q. Now, from the time you left your apartment to the time of the accident, did you look at the floor ? “A. No, I didn’t. “Q. You were looking ahead of you or either looking at Mr. Green; is that correct? “A. I looked at Mr. Green and, actually, 1 was in a hurry. I didn’t look at anything. I was expecting a telephone call at nine o’clock. All I wanted to do was get in the basement and get back before the phone rang. “Q. You were in a hurry? Is that correct? “A. I wasn’t rushing; I wasn’t running, but I had this on my mind. “Q. You wanted to perform your chores, deposit the newspapers, and come back up for the telephone call; is that correct ? “A. That’s right.” (Emphasis supplied.) Just what plaintiff had on her mind at the time of the fall is not disclosed in the record. It is clear, however, that, at the time of her fall, plaintiff did not have the defective carpeting in mind. In Whoram v. Township of Argentine (1897), 112 Mich 20, plaintiff recovered a judgment for personal injuries received after falling on an allegedly defective- highway. The testimony disclosed that plaintiff knew of the defect in the highway. However, as here, at the time of the fall plaintiff was not thinking of the defect. Rather, he “was thinking about my errand — about my business — when the accident happened. I didn’t think about this hole. My mind was intent upon my business at the time.” 112 Mich at 22. On appeal, defendant argued that plaintiff’s testimony, in light of his prior knowledge of the defect, required the conclusion that plaintiff was negligent as a matter of law. The Court, citing Bouga v. Township of Weare (1896), 109 Mich 520, held that the question of plaintiff’s contributory neg ligence was properly left to the jury. 112 Mich at 23. In Bouga v. Township of Weare, supra, at 523, the Court noted: “Certainly, one who should pass a broken bridge by a ford, in the morning, might be expected to remember the fact until night, and act upon such recollection. Whether or not it would be negligent to forget it, and drive upon the bridge, might depend upon circumstances, which would be for the jury to pass upon.” (Emphasis supplied.) Both Whoram v. Township of Argentine, supra, and Bouga suggest the following rule. We quote from an annotation entitled, “Momentary Forgetfulness of Danger as Contributory Negligence,” 74 ALR 2d 950, 953: “[F]orgetfulness is not necessarily negligence but is merely one factor to be considered in light of the total situation, in determining whether the overall test of reasonable care has been met.” Accord, Kucinski v. City Laundry & Cleaning Works (1928), 242 Mich 352, 355. Moreover, that same annotation notes that in a number of cases courts have held the issue of contributory negligence in forgetting a known danger to be a question for the trier of fact. Bouga v. Township of Weare, supra, is cited as supporting authority. See 74 ALR 2d at 955, 956. In other words, such cases present circumstances making it impossible for the reviewing court to say with any certainty that all reasonable men would agree plaintiff was guilty of contributory negligence. Dundas v. City of Lansing (1889), 75 Mich 499, provides an additional example. Plaintiff sued for injuries sustained when she fell into a hole on an allegedly defective crosswalk. Again, there was testimony that plaintiff knew of the defect prior to the accident. Defendant claimed that plaintiff’s testimony established as a matter of law that she was contributorily negligent. The Court responded at p 509: “She testified that she was in a hurry to get home, and was not thinking about the hole in the ivalk, nor looking for it, and that if she had been thinking about it, or looldng for it, she would not have stepped into it; that she was sure it was because she did not think of it that she stepped in; that she did not look for the hole. * # # “It is doubtless true, as plaintiff testified, that had she been at the time upon the lookout for this hole in the walk she might have seen and avoided it; but the question is, was she negligent, under all the circumstances and surroundings, in not seeing and avoiding itf The darkness of the night, the storm, her anxiety to get home are all circumstances that should be weighed as bearing upon her conduct upon that occasion. The question is not free from doubt, and when it is not it should be submitted to the jury.” 75 Mich at 509, 510. (Emphasis supplied.) See also, Graves v. City of Battle Creek (1893), 95 Mich 266; 2 Restatement Torts 2d, § 289, comment k, p 45. A second commentator lists the following circumstances under which inattention to a known danger may be consistent with the exercise of ordinary care: “[T]he situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly, which are calculated to divert one’s attention momentarily from the danger.” 65A CJS, Negligence, § 120(2),p 65. In the present case, it was plaintiff’s testimony that she was in a hurry; something was on her mind. Whether that something was so trivial as not to warrant inattention to her surroundings is not disclosed in the record. However, in the absence of testimony to the contrary, we think it permissible to infer on favorable-to-plaintiff view of the evidence that what distracted her attention was a matter of importance. Plaintiff also testified that she was anxious to return to her apartment; she was expecting a telephone call. Upon leaving her apartment, her attention was distracted by Mr. Breen and immediately thereafter she fell. All these circumstances combined could reasonably lead the trier of fact to conclude that plaintiff’s momentary inattention to the torn carpet was consistent with the conduct of an ordinarily prudent person. Whether or not a reasonable person would have avoided the torn carpet of which he had prior knowledge under like circumstances was, on the testimony presented, a question on which reasonable men might fairly reach different conclusions. As such, the question of plaintiff’s contributory negligence was for the trier of fact. Todd v. Simonis (1963), 370 Mich 342; Ingram v. Henry, supra; Uren v. Toth, supra. Both Brown v. Grell, supra, and Jones v. Michigan Racing Association, supra, upon which defendants rely, are distinguishable. In each, no evidence was presented indicating that, at the time of the accident there involved, plaintiff was distracted. In Jones, the Court noted at 650, 651: “[P]laintiff, before the accident, saw the muddy puddles and wet tickets all over the floor, recognized or should have recognized that a dangerous condition was thereby created and, in the face of such knowledge, undertook to leap on one foot across the 4- to 5-foot puddle.” (Emphasis supplied.) And see, Shorkey v. Great Atlantic & Pacific Tea Co. (1932), 259 Mich 450, 453. Defendants’ contention that Brown and Jones control overlooks a fundamental distinction. “Knowledge alone of the dangerous character of the instrumentality which causes an injury is not sufficient to charge the injured party with contributory negligence, as a matter of law; the question in each case being whether plaintiff did or did not have the danger in mind at the time of the injury complained of. Dundas v. City of Lansing, 75 Mich. 499 (5 L.R.A. 143, 13 Am. St. Rep. 457); Graves v. City of Battle Creek, 95 Mich. 266 (19 L.R.A. 641, 35 Am. St. Rep. 561); Grandorf v. Railway Co., 113 Mich. 496; Vergin v. City of Saginaw, 125 Mich. 499.” Kucinski v. City Laundry & Cleaning Works (1928), 242 Mich 355, 356. (Emphasis supplied.) In summary, on the evidence presented, it was error for the trial court to conclude as a matter of law that plaintiff was contributorily negligent. What constituted due care for plaintiff’s own safety was, on this record, a question of fact and not of law. Reversed and remanded for new trial. Costs to appellant. All concurred. Under GCE 1963, 111.7, contributory negligence is an affirmative defense.	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Danhof, P. J. Defendant Budary and a codefendant, Howard Commons, were found guilty of robbery armed by a jury on February 20, 1963, CLS 1961, § 750.529 (Stat Ann 1970 Cum Supp § 28.797). It was tbe theory of the prosecution that Budary and Commons, along with James Murphy and Robert Richter, committed an armed robbery of a Food Fair market in Detroit on December 4, 1961. Initially, only Budary, Commons and Murphy were held for trial, because Richter had left the state and had not yet been apprehended. Two preliminary examinations were held. The first occurred on January 5, 1962, -with Budary, Commons and Murphy as defendants. Attorney Gregory Pillon represented Commons and Murphy. There was no appearance by an attorney for Budary. However, near the conclusion of the examination attorney Pillon made a motion that the case be dismissed as to Commons and Budary alleging lack of probable cause to believe that the two men were connected with the holdup. The court, however, decided to bind over all three defendants for trial on the charge of robbery armed. On March 20, 1962, James Murphy pleaded guilty and was later sent to prison. Thereafter, on March 26, 1962, the prosecution moved to dismiss the case against Budary and Commons. On July 15, 1962, Budary and Commons were rearrested for the rob-’ bery and arraigned on July 16, 1962. A second preliminary examination was held on July 19, 1962, before a different judge than was involved in the first preliminary examination. At this second preliminary examination attorney Pillon again represented codefendant Howard Commons. There was a brief colloquy between the court, Budary and Pillon wherein the court asked Budary why he didn’t have a lawyer and he answered that he didn’t have the funds. The court then asked attorney Pillon if there was any conflict that he could antici pate and, when Mr. Pillon answered none that he could think of, the court said, “You represent both of them for the examination only.” . By this time Robert Richter had been captured in Chicago, Illinois, and returned to Detroit. He also pleaded guilty. At the second preliminary examination, he testified for the people, and it is the admissibility of that testimony at trial which is questioned in this appeal. At the trial which commenced February 14, 1963, defendant was represented by attorney Ted Vincent, appointed by the court, and the codefendant was represented by Mr. Pillon. The case was tried and decided before the creation of this Court. On October 19, 1967, defendant filed a motion for leave to file a delayed motion for new trial, which was denied January 9, 1969. This Court granted an application for delayed appeal on March 10, 1969. Defendant argues that the summary appointment of codefendant’s counsel to represent defendant at the second preliminary examination, without the record showing an affirmative determination by the examining magistrate that the defendant intelligently chose to be represented by the same counsel, and that his decision was not governed by poverty and lack of information on the availability of assigned counsel to represent him alone, constituted reversible error. In People v. Dockery (1969), 20 Mich App 201, this Court held that absent prejudice to the defendant this Court would not reverse because indigent codefendants were represented at trial by the same appointed counsel. The Court’s opinion indicated that this was not the most desirable method of procedure and that, if there was any conflict of interest in the positions of the codefendants, the result would be different. The Dockery case related to the trial itself. In the instant case we have no question about the actual trial where codefendants were represented by separate counsel. With regard to the preliminary examination, as previously stated, the court did ask attorney Pillon if he anticipated any conflict and received a negative response. Thereafter attorney Pillon throughout the examination made many objections and cross-examined the people’s witnesses vigorously. With regard to witness Richter’s testimony there are ten pages of vigorous cross-examination by Pillon. The fact that near the end of the examination Mr. Pillon indicated that he didn’t represent defendant Budary does not alter the fact that he then went on to represent him by contending that Budary wasn’t guilty of the crime inasmuch as the only connection between him and it was that he was some eight blocks away during its occurrence. Mr. Pillon’s remark does not alter the fact that the court at the beginning of the examination did appoint him to represent Budary, and he did in fact do so in a competent way. However, regardless of whether attorney Pillon’s representation of the defendant was effective or not, the court in Lundberg v. Buchkoe (CA 6, 1968), 389 F2d 154, held that Michigan’s arraignment and preliminary examination proceedings did not constitute a critical stage of the proceedings at which counsel for the accused was required. By way of dictum the court said there might be special circumstances in some eases that would suggest that the proceedings were critical and therefore required counsel. However, counsel was in fact appointed for defendant Budary, albeit not in the most exemplary fashion. Defendant then attempts to buttress his position that he was without effective counsel at a critical stage in' the criminal judicial process by stating that actual prejudice is readily discernible. In support of this defendant argues that the critical testimony at the preliminary examination which resulted in defendant’s being bound over for trial was that of Robert Richter, who upon his capture and return from Chicago pleaded guilty of the same criminal act charged against the defendant and who at the preliminary examination implicated Budary in the robbery. Yet at the trial when Richter was called as a witness for the people, he firmly denied that Budary had any connection with the crime. The prosecution then proceeded to read portions of Richter’s testimony at the preliminary examination before the jury and over the defense counsel’s objections, and this testimony was particularly damaging to Budary’s defense. Defendant then says that this testimony was taken at the preliminary examination whére Budary did not have his own counsel and where he was denied effective confrontation and cross-examination relative to self-interest, duress or any number of reasons for this damaging testimony. Defendant cites Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065; 13 L Ed 2d 923) and People v. Chapman (1968), 380 Mich 74, in support of his position that preliminary examination testimony cannot be admitted at the trial if defendant was not represented by counsel at the preliminary examination. Both cases are readily distinguishable from the instant case because no attempt was made to appoint counsel at the preliminary examination in those cases, whereas in this case Pillon was appointed. More significant, however, is the fact that neither of the cases involved use of preliminary examination testimony for the purposes of impeachment as does the instant case. That is true also of People v. Gibbs (1967), 255 Cal App 2d 739 (63 Cal Rptr 471). All of them concerned the admission of preliminary examination testimony as substantive evidence because tbe witness at tbe preliminary examination was unavailable to testify at tbe trial. Tbe point made by tbe courts was that when defendant wasn’t represented by counsel at tbe preliminary examination or bis attorney did not have adequate time to prepare for cross-examination, then defendant bad been denied bis constitutional right to confront tbe witnesses against him which is primarily for tbe purpose of cross-examination, and that, therefore, their testimony could not be used as substantive evidence at tbe trial. In other words, tbe people bad to bring in tbe witness at tbe trial so that tbe defense counsel bad at least one opportunity to cross-examine tbe witnesses against tbe defendant. In tbe present case there is no problem of tbe defendant not having a complete and adequate opportunity to confront tbe witness and to cross-examine tbe witness, since Richter took tbe stand at tbe trial and tbe preliminary examination testimony was used only to impeach bis testimony at tbe trial. Clearly this case does not present tbe “special circumstances” that tbe court in tbe Lundberg case bad in mind. Defendant’s second argument is that tbe testimony of tbe police officer relative to tbe information given by tbe allegedly reliable informant did not satisfy tbe requirements of reliability and particularity of information sufficiently to authorize tbe trial judge to have denied disclosure of tbe informant’s identity, and that tbe search incidental to defendant’s arrest consequently violated tbe Fourth and Fourteenth Amendments of tbe United States Constitution and tbe evidence obtained thereby was inadmissible and should have been excluded. Defendant cites as authority for his position Beck v. Ohio (1964), 379 US 89 (85 S Ct 223; 13 L Ed 2d 142) wherein the Court said: “All that the trial court was told in this case was that' the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law. Beyond that, the arresting officer who testified said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner. We do not hold that the officer’s knowledge of the petitioner’s physical appearance and previous record was either inadmissible or entirely irrelevant upon the issue of probable cause. (Citing Brinegar v. United States [1949], 338 US 160 [69 S Ct 1302; 93 L Ed 1879]). But to hold that knowledge of either or both of these facts constituted probable cause would be to hold that anyone with a previous criminal record could be arrested at will. “It is possible that an informer did in fact relate information to the police officer in this case which constituted probable cause for the petitioner’s arrest. But when the constitutional validity of that arrest was challenged, it was incumbent upon the prosecution to show with, considerably moore specificity than was shown in this case what the informer actually said, and why the officer thought the information was credible.” The instant case is clearly distinguishable from the facts in the Beclt case. The record shows that a Detroit police officer testified on direct examination as follows: “Q. Was this person you talked to on the third day of December, 1961, a confidential informer? “A. He was. “Q. Did he give you certain information on this date ? “A. Yes, sir. “Q. And has he given you information, or had he given you information in the past? “A. Yes. “Q. Had that information turned out to he reliable ? “A. Yes.” On a special record out of the presence of the jury the direct examination was continued, part of which follows: “Q. Is this man still a valuable informer to the Detroit Police Department? “A. Yes. “Q. Would it be injurious to the Detroit Police Department to ask this man to disclose his name at this time? “A. It would, sir. “Q. Please state the information given to you by this man. “A. I was told that there was a gang consisting of three men who specialized in holdups of super markets. “Q. Go ahead. “A. They were going to hold up a supermarket this following week. The first man was described as the driver who lived at the Wardcliff Hotel in room 404. His name was Melvin Budary. He had already stolen the car and had it hidden to use in the holdup. Number two man was described as a white man, 30, 6 foot tall, 150 pounds, dark brown hair, light jacket, which he always wears. He was also described as thin, broad shoulders, clean-cut looking, young clean-cut appearance. He lived at the Leroy Hotel on Brainard, and was going with a waitress from Harry’s Bar on Michigan, and a waitress from Pox’s Bar on Michigan, called Mitzie. Mitzie I knew to be Mary Shay. Number three man was described as a white man who always wore a blue jacket and also goes with the waitresses and the above man. He is supposedly staying with the number two man at the Leroy Hotel on occasions. The guns to be used on the holdup were reported to be at the waitress’ apartment on Brainard. Also Mitzie lived at 84 Sproat, apartment number 202, and these people congregated there and sometimes stayed there. That was the original information that I received. I told the informer to keep digging and keep in constant contact with me, which was done. Monday, December 4, I was again contacted. We were on the street looking for the suspects. I was contacted and told there was going to be four men on the holdup. The car they were going to use was a white ’61 Pontiac or Oldsmobile, that the super market was on the west side. The exact location was not known. Later, as we were still on the street, at approximately 6:50 we heard a radio run, holdup, at 16520 West Warren, Food Fair Market, a robbery. This fitted in with the information we had previously. Then at 7:32 as I recall a teletype was issued describing two of the men and stating they had escaped in a ’60 white Olds or Pontiac vehicle. Contact was again made with the informer several times that evening, and we learned Melvin Budary was one of the men and a man named Bob and the number two man we learned was Richter. The number three man we got a description on as being young, clean-cut, handsome, with curly hair, blond curly hair. We also learned that one of these men supposedly owned a white-blue Falcon vehicle. At approximately 10:30 or so in the evening of the fourth of December, 1961, we received information that it was believed the participants of this holdup were at 84 Sproat. I then gave that message to Sergeant Collins, and told him as far as I was concerned the people were in there now and he could arrest them at his own discretion, or as soon as he felt it feasible. At approximately 11 o’clock I left the scene when Sergeant Collins arrived. As I recollect, that was Ihe extent of the information.” The foregoing quotations from the trial transcript show clearly what the informer actually said and why the officer thought the information was credible. The informer had given reliable information before, he described the defendant by name and address, he related many specific details about the holdup gang including a description of the get-away car and the address where they could probably be found. We find no merit in defendant’s argument that the information given by the informer did not satisfy the requirements of reliability and particularity required by Beck v. Ohio, supra. Defendant next argues that the trial court erred in allowing the prosecution to read portions of Robert Richter’s testimony at defendant’s preliminary examination in front of the jury for the purpose of impeaching Richter’s testimony without informing the jury that it could not consider Richter’s examination testimony as substantive evidence. Defense counsel did not request such a charge and no exception was taken to the trial court’s failure to give such an instruction. It may have been an oversight on defense counsel’s part, or it may have been trial strategy not to remind the jury of the testimony at the preliminary examination since that was highly prejudicial to defendant. The question for this Court is: should it reverse when defense counsel has not requested specific instructions limiting preliminary examination testimony to impeachment purposes and has not objected to the court’s instruction as given. CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052) states in part: “The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” This Court relied on that statute in refusing to reverse in the cases of People v. George Baker (1967), 7 Mich App 7, and People v. Pope (1967), 8 Mich App 231. The Baker case concerned the introduction of the defendant’s criminal record for impeachment purposes and the Pope case concerned the impeachment of a witness by prior verbal statements. However, in People v. Eagger (1966), 4 Mich App 449, and People v. Danles (1969), 15 Mich App 510, this Court held that it was reversible error to fail to give an instruction that the out-of-court statements which were not under oath and were not in the presence of the defendant could be used only for impeachment purposes and not as substantive evidence even though such an instruction was not requested by the defendant. Reliance was placed on People v. Durkee (1963), 369 Mich 618, in arriving at this result. Those three cases are factually distinguishable since in the present case preliminary examination testimony is involved which is sworn under oath and given in the presence of the defendant who has a right to confront the witnesses and to cross-examine them. This distinction was not spelled out in any of the three opinions, but it wasn’t necessary since preliminary examination testimony was not being challenged. However, the court in the Durkee ease may well have had this in mind when it said at p 626 with reference to the out-of-court hospital statement: “even though the statement was not made under oath and not made in the presence of defendant.” In that case the preliminary examination testimony indicated that the witness did not remember and she also stated at the trial that she did not remember so the preliminary examination testimony and trial testimony agreed, and the issue was whether the out-of-court hospital statement could be used to impeach her. However, in People v. Virgil Brown (1969), 15 Mich App 600, the defense counsel did object to the use of the preliminary examination testimony and requested the court to include in its charge to the jury an instruction that the questions put to the witness by the prosecution were not evidence and could not be considered by them in their deliberation. The court, aside from a remark to the prosecutor not to stray beyond legitimate impeachment, did not instruct the jury either during the trial-or in its charge that use of the preliminary examination testimony was only for impeachment purposes and could not be considered as substantive evidence. That case is of course distinguishable in that the defense counsel did object and did request a specific limiting instruction which the trial court refused. There is no question but what that constitutes reversible error. The court went on to say that failure to give such a limiting instruction has been held to be reversible error irrespective of whether such an instruction was requested, citing the Eagger case. However, as previously stated that case dealt with an out-of-court statement and did not involve preliminary examination testimony which is given under oath and in the presence of defendant. Regardless of this factual distinction, however, we do not think that the Brown case is controlling as it was decided some six years after the trial in the instant case. We hold that this case is governed by CL 1948, §768.29 (Stat Ann 1954 Rev §28.1052). Defendant having failed to request the instruction will not now be granted a new trial because of the court’s failure to give the instruction. Defendant also contends that the lower court erred in not declaring a mistrial when the prosecuting attorney made reference to a “convicted felon” in his rebuttal statement, since defendant had elected his constitutional right to remain silent. The remark complained of occurred during the prosecutor’s closing argument to the jury as he was summarizing the case against codefendant Howard Commons. The reference to Howard Commons being with a convicted felon at a bar downtown was not focused directly on defendant. The courts of this state have always been extremely sensitive to the merest likelihood that improper mention of an accused’s past criminal record might prejudice the proceedings against him. See People v. Greenway (1962), 365 Mich 547, and People v. Camel (1968), 11 Mich App 219. However, the record discloses that defendant’s attorney did not move for a mistrial, and we hold that his objections to so marginal a remark are therefore waived. Finally the defendant argues tha4 the trial court erred in its charge to the jury when the judge, sua sponte, stated as follows: “Now in this case the defendant, Melvin Hugh Budary, has not taken the stand. “Under our law the defendant may take the stand or elect not to do so. When he does not take the stand in his behalf counsel have no right to comment on that, nor has the court any right to comment about it, and you have no right to take that into consideration in any manner in arriving at your verdict. It is his right to take the stand, or he may elect not to do so, as he shall choose, and you are not in any sense to construe that against him.” Defendant urges that due process demands nothing short of silence regarding defendant’s exercise of his constitutional right, unless such a charge is requested by the defendant. Defense counsel did not advise the trial judge that he wanted no instruction on the defendant’s failure to take the stand, nor did he object to the instruction after it was given. Furthermore, the co-defendant, Howard Commons, took the stand in his own behalf and under such circumstances it would appear that a precautionary instruction in this regard was appropriate and likely inured to the benefit of the defendant. United States Supreme Court cases which prohibit adverse comment regarding the defendant’s failure to take the stand are not in point where, as here, the trial court clearly instructed the jury that they could not consider the defendant’s failure to testify in any way. Affirmed. All concurred.	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Lesinski, C. J. As a result of a certification election, the Fitzgerald Education Association (FEA) is the exclusive representative for collective bargaining purposes of all 287 teachers employed by defendant Board of Education of the Fitzgerald Public Schools. See MCLA §423.209 (Stat Ann 1968 Rev § 17.455[9]) and MCLA § 423.211 (Stat Ann 1968 Rev § 17.455 [11]). Pursuant to this authority, the FEA and defendant entered into a collective bargaining agreement covering wages, hours and other terms and conditions of employment of the 287 Fitzgerald school system teachers, for the period of July 1, 1968, through June 30, 1970. Pursuant to MCLA § 423.215 (Stat Ann 1968 Rev § 17.455 [15]), and §423.211, supra, the collective bargaining agreement established detailed procedures for the handling of teacher complaints, questions and grievances concerning wages, hours, and other terms and conditions of employment. Plaintiff Marilyn Mellon is a teacher employed by the defendant Board of Education and is a beneficiary of the above collective bargaining agreement. She apparently became aggrieved of certain actions, including harassment and reassignment, by her school principal. Although recognizing the procedures provided by the bargaining agreement, plaintiff elected to present a direct grievance petition to the defendant board. The board denied the plaintiff’s request for a hearing on her petition as being outside the collectively agreed-upon procedures. Plaintiff then instituted a circuit court action seeking a writ of superintending control over the defendant. Defendant’s motion for summary judgment was denied and an order was issued mandating a full hearing on plaintiff’s petition. At the outset we note that the Fitzgerald Education Association has indicated a willingness to consider and process plaintiff’s grievances through the established procedures. On appeal defendant argues that plaintiff does not have a statutory or contractual right to a full hearing on her direct petition to the school board. In the absence of a clear, legal right, the Board is not under a clear legal duty to grant a hearing. Hence, argues defendant, an order of superintending control (in the nature of mandamus) may not issue. Taylor v. Ottawa Circuit Judges (1955), 343 Mich 440; GCR 1963, 711.2. We agree. MCLA § 423.211 establishes the exclusive bargaining authority of the elected representative. However, in a provisio to § 423.211, the right of an individual teacher to present grievances is recognized. “Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment.” The purpose of the proviso is twofold: First, to permit individual teachers to present certain grievances to the school board without the delay or formality of grievance procedures, or where the bargaining agent is acting capriciously; and second, to permit the employer to negotiate directly with the individual teacher without being in violation of MCLA §§423.210, 423.215 (Stat Ann 1968 Rev §§ 17.455[10], 17.455[15]) which proscribe unfair labor practices and evasion of the collective bargaining agreements. The permissive character of the language of the proviso is readily apparent when compared to the mandatory language of § 423.215: “A public employer shall bargain collectively with the representatives of its employees as defined in § 11 (MCLA § 423.211 [Stat Ann 1968 Rev § 17.455 (11)]).” (Emphasis supplied.) If the employer desires to settle individual grievances without the intervention of the bargaining representative, the proviso gives him the power. However, since the proviso requires an individual adjustment to be consistent with the collective bargaining agreement, the employer may elect to proceed under the agreement’s procedures in the first place rather than, risk rebargaining over the same issues. This same conclusion has been reached by the Michigan Labor Mediation Board in Strayer v. Avondale School District Board of Education (1967), Case No. C66 F-71, and the Federal courts (interpreting 61 Stat 143 (1947), 29 USC § 159[a], the National Labor Relations Act § 9[a], the Federal counterpart of MCLA §423.211), in Broniman v. Great Atlantic & Pacific Tea Company (CA 6, 1965), 353 F2d 559, cert den (1966), 384 US 907 (86 S Ct 1343, 10 L Ed 2d 360), and Blach-Clawson Company, Inc., v. International Association of Machinists Lodge 355 (CA 2, 1962), 313 F2d 179. Therefore, since the school board was not under a duty to provide plaintiff with an individual grievance hearing, it was error for the trial court to compel such a hearing. The order of superintending control is reversed. This case is remanded for entry of summary judgment in favor of defendant. All concurred. The Fitzgerald Education Association has been permitted to file a brief amicus curiae in this case. This same language is incorporated in the instant collective bargaining agreement. Since the employer agreed to the collective bargaining aspects of the agreement, it is illogical to suppose that the board would also agree to individual bargaining as of right.	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Fitzgerald, P. J. This Court is faced with two cases which have been consolidated for purposes of this appeal, the same statement of facts being applicable in both instances. The original actions dealt with and arose out of the amendment to the statute known as the “Hutchinson Act”. It is concerned with the right of county employees to organize and bargain collectively with their respective governmental employers over rates of pay, wages, conditions of employment and hours of work. The initial dispute arose on March 22, 1966, when the Wayne County Board of Supervisors adopted a resolution which established a three-member labor relations board for the express purpose of com plying with the requirements of PA 1965, No 379 (MCLA § 423.209 [Stat Ann 1968 Rev § 17.455(9)]), amending PA 1947, No 336, and establishing collective bargaining for public employes. The act provides that: “It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.” In § 15 of the act, collective bargaining is made an employer duty, the act specifically providing that: “A public employer shall bargain collectively with the representative of its employees as defined in § 11 and is authorized to make and enter into collective bargaining agreements with such representatives.” The labor relations board, which consisted of representatives of the board of supervisors, Wayne County Civil Service Commission and the Wayne County Road Commission, began collective bargaining sessions. This, in effect, displaced the civil service commission in bargaining for rates of pay and terms and. conditions of employment. In April, 1967, the Wayne County Civil Service Commission filed an action against the Wayne County Board of Supervisors, the Wayne County Road Commission and the Wayne County Labor Relations Board, seeking a declaratory judgment for determination of the collective bargaining rights of the respective parties. The case came on to be heard by a three-judge panel of the Wayne County Circuit Court. On March 26,1968, the court entered a declaratory judgment, with one judge dissenting, which determined that the County of Wayne was the employer under PA 1965, No 379 (MCLA § 423.209 [Stat Ann 1968 Rev § 17.455(9)]) and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. All parts of PA 1941, No 370 (MCLA § 38.401 et seq. [Stat Ann 1961 Rev § 5.1191 (1) et seg.]) which were inconsistent were declared repealed by implication or suspended. Subsequently, on April 9, 1968, plaintiff filed a claim of appeal to the circuit court which was denied. The court also denied a motion for new trial and a motion to amend the judgment. On August 8, 1968, defendant Wayne County Board of Road Commissioners filed a claim of appeal. We are primarily concerned with the issue of whether the trial court erred in its determination that the County of Wayne was the employer under PA 1965, No 379, and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. More succinctly stated, we are asked to determine who actually is the employer of employees of Wayne county for the purpose of collective bargaining and negotiation. We note that this problem exists because the legislature in drafting PA 1965, No 379, failed to specifically define the term “employer” for purposes of collective bargaining under the act. It is the contention of the plaintiff civil service commission that the County of Wayne is the em ployer and that the civil service commission is the exclusive body to represent the County of "Wayne and all bodies within the county in matters dealing with terms and conditions of employment, salaries and wages of all employees of this governmental unit in the classified service. On the other hand, defendant Board of Wayne County Road Commissioners avers that it is the employer of its own employees. The Board of Wayne County Supervisors takes a slightly different tack and maintains that the County of Wayne is composed of joint employers and the board of supervisors is the branch of government within the county upon whom the duties and responsibilities arising under PA 1965, No 379, are imposed. We note that this whole action comes to us as a by-product of the passage of PA 1965, No 379, supra. After a careful examination of the pertinent provisions of this act, nowhere within it is the term “public employer” defined. This oversight is the crux of the problem with which we are faced. Nowhere within the statutory confines of “P.E.R.A.” can be found any standards to aid in this determination. In reviewing the dissenting opinion entered in this cause, we find the general characteristics of identification of an employer are: (1) that they select and engage the employee; (2) that they pay the wages; (3) that they have the power of dismissal; (4) that they have the power and control over the employee’s conduct (35 Am Jur, Master and Servant, § 3, p 445). A most significant requisite of one who is an employer is his right to exercise control over the method by which the employee carries out his work. Hence, before we can reach a proper conclusion to this controversy it is neces sary to determine what authority and power' each of the parties to this litigation have with regard to the employment relationship. The powers of the Wayne County . Civil Service Commission are set forth in PA 1941, No 370 (MCLA § 38.409 [Stat Ann 1961 Rev § 5.1191(9)])., Thus, the civil service commission has authority to: “[P]rovide by regulation for the hours and conditions of service, for the length and period of vacations, and for the regulation of sick leaves in the county service, and for such other matters pertaining to the carrying out of the provisions of this act.” Its powers are more specifically delineated in MCLA §38.412 (Stat Ann 1969 Cum Supp §5.1191 [12]) which states: “(a) It shall classify all the offices and positions of employment with reference to the examinations herein provided for, excepting as herein otherwise provided; “(b) Shall from time to time make; in accordance with the provisions hereof, rules adopted to carry out the purposes of this act and not inconsistent with its provisions for the examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment, and for the selection of persons to be employed in the service of the county; “(c) Shall supervise the administration of the (civil service rules, hold examinations thereunder from time to time, giving notice thereof, • prepare .and keep an eligible list of persons passing such .examinations and certify the names of persons thereon to the appointing officers of the several departments ; “(d) Shall, by itself or otherwise, investigate the enforcement of the provisions of this act, of its own rules and of the action of appointees in the classified service. In the course of such investigation, the commission or its authorized representative, shall have the power to administer oaths, and the commission shall have power by its subpoena, to secure both the attendance and testimony of witnesses and the production of books and papers relevant to such investigation; “(e) Shall provide, through the purchasing department of the county, all needed supplies for the use of the commission. “(f) The classification shall be subdivided into groups and shall be based upon, and graded according to the duties and responsibilities of such positions, and shall be so arranged as to permit the filling of the higher grades through promotion. All salaries shall be uniform for like service in each grade of the classified service as the same shall be classified and standardized by the commission. Such classification and standardization of salaries shall not be final until approved by the board of supervisors and such salaries shall not be paid except in accordance with such classification and standardisation; “(g) Shall have such other powers and perform such other duties as may be necessary to carry out the provisions hereof.” As can readily be seen from an examination of the aforementioned powers and duties, the civil service commission is clothed with some of the characteristics of an employer. However, while the plaintiff must classify positions and submit uniform pay plans for standardizing salaries, it does not have exclusive control over classification and standardization of salaries, for this must be approved by the board of supervisors. The Wayne County Board of Supervisors has a duty to represent the county and to have “care and management of the property and business of the county in all cases where no provisions have been otherwise made.” (MCLA § 46.11 [Stat Ann 1969 Cum Supp §5.331]). The board of supervisors must also approve all decisions made by the county civil service commission. Hence, it is clear that the responsibility for final approval of all contract salary provisions lies with the supervisors. It appears from the foregoing that the board of supervisors does not hold all of the identifying characteristics of an employer and must function in conjunction with the civil service commission and the particular appointing authority. The Wayne County Road Commission is also a creature of statute, with specific duties and functions. (MCLA § 224.9 [Stat Ann 1958 Rev § 9.109]). The specific intent of the legislature in granting the commission authority over certain employer activities can be found in MCLA 1969 Cum Supp § 224.10 (a) (Stat Ann 1969 Cum Supp §9.110[1]), the pertinent language states: “(1) The board of county road commissioners may participate in the cost of, or provide life, health and accident, and hospitalization insurance for, employees under its jurisdiction and their dependents in any county where the board of supervisors has not made such benefits available to the employees pursuant to the provisions of § 12a of Act No 156 of the Public Acts of 1851, as amended, being § 46.12a of the Compiled Laws of 1948. * # # “(5) Nothing in this section shall prohibit or restrict a board of county road commissioners xoho have prior to January 1, 1968 entered into a collective bargaining agreement from participating in a pension or insurance program for those of its em ployees who are. members of a collective bargaining unit * . * * (Emphasis supplied.) The parties have stipulated: the road commission has-the-power to hire, fire, demote, promote, discipline and -pay its employees performing road work, subject to PA 1941, No 370, as amended, since its adoption, in 1942. An examination of the statutes cited, supra, will indicate that although there is no specific language authorizing road commissions to bargain collectively with their employees, the language appears to indicate that the legislature so intended. The case of Labor Mediation Board v. Jackson County Road Commissioners (1962), 365 Mich 645, indicates that a board of road commissioners is regarded as a public employer, and hence should be permitted to bargain collectively with its employees under the specific terms of P.E.R.A. In view of the above analysis of the obligations and powers of the parties to the present litigation, it is apparent that there exists no single agency in .Wayne county which has the exclusive right or responsibility • to represent the county in all matters pertinent to the process of collective bargaining. In its majority opinion, the trial court ruled that provisions of PA 1941, No 370, which were inconsistent with PA 1965, No 379, were repealed by implication. - We'disagree with this position, as both statutes'are capable of being reconciled. PA 1965, No 379, has changed the field of public employment only to the extent that the employees may now join a union and bargain collectively with employers. Since Act No 379 does not specifically define the word “employer,” bargaining must be carried out within the framework of the law already in existence. From an examination of both statutes, it seems fair to say that PA 1965, No 379 did not undertake to change the character of the employer or transfer any duties, but gave the representative of the employees the right to deal with the particular employer as he found him. Therefore, the statutory enactments dividing up the prerequisites and functions among several county agencies will have to be recognized. While this is not the simplest solution to the difficult problem with which we are faced, and though it may even tend to confuse and complicate the area of collective bargaining within Wayne County, it is the only plausible solution under the confines of the present statutory law. Our holding is most adequately explained by the dissenting opinion which states in part: “The courts are without authority to bring their concept of judicial order out of what the litigants feel is legislative chaos, unless, of course, the statute is unconstitutional. Nor is it the prerogative of the courts to simplify the procedure by ignoring statutes, no matter how numerous or difficult.” We therefore reverse the decision of the lower court and adopt in full the answer in the dissenting opinion to the questions posed in the prayer of the original complaint, which is as follows: “I. Plaintiff performs some of the functions of the public employer, but certainly not all; that plaintiff’s contention that the civil service commission is the only body empowered to negotiate with public employee unions on matters set out in § 11 of Act 379 is unsupported by law; that the “public employer” is the County of Wayne and that plaintiff, the board of supervisors, the county road commission and other agencies of the county are empowered by law to, and therefore must, perform those functions delegated to them in dealing with public employees and their conditions of employment; “II. The public employer is the County of Wayne and its functions as an employer are carried out by various entities, such as the board of supervisors, the civil service commission and, to a lesser extent, the Wayne County Road Commission and other appointing authorities. “III. The board of supervisors — in carrying out its statutory function (MCLA § 46.Í1 [Stat Ann 1969 Cum Supp § 5.331]) of having the “care and management of the property and business of the county in all cases where no other provisions shall be made” (emphasis supplied) has the right and responsibility to carry out the requirements of Act 379 as to determining adequate bargaining units and the recognition of exclusive agents of employees and may utilize a vehicle such as the labor relations board to investigate and recommend appropriate action to the board of supervisors. “IV. There is no single body or individual in county government who has the right or responsibility, exclusively, to represent the county in matters dealing with the establishment of salaries, wages, terms and conditions of employment of employees in the classified service. “V. Act 379 has not terminated or modified the power and authority of the civil service commission under Act 370, except that as the repository of some of the powers of the employer, they as well as others holding such powers, have the duty to bargain in good faith, etc. “VI. Neither the board of supervisors nor the Wayne County Road Commission has the authority to delegate to the labor relations board the duties and responsibilities of the civil service commission under Act 370.” Reversed. No costs, a public question. T. M. Burns, J., concurred. PA 1941, No 370 (MOLA § 38.401 [Stat Ann 1961 Bev § 5.1191 (1)]), established a civil service system for the County of Wayne.	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J. H. Gillis, P. J. This appeal requires interpretation of a few, relatively simple words. They are these. “At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: “(1) Any deposition may be used by any party for the purpose of impeaching the testimony of deponent as a witness. “(2) The deposition of a party or anyone who at the time of the transaction or occurrence out of which the action arose or at the time of taking the deposition was an officer, director, employee, or agent of any party may be used by an adverse party for any purpose.” GOB, 1963, 302.4. The question presented is whether the trial court erred in allowing certain deposition testimony to be used against defendants-appellants as substantive evidence. I Facts and Proceedings. On February 2, 1965, plaintiff commenced this medical malpractice action against a group of radiologists, defendants, Holly, Joistad, Johnston and Holly, individually and as copartners. The complaint alleged that on April 1,1964, plaintiff was sent by his employer to Holly’s medical office located in Muskegon, Michigan, for radiological diagnosis of possible injury to his right arm; that an X-ray was taken which disclosed a fracture; that plaintiff, through his employer, was informed that no fracture existed; and that thereafter plaintiff, thinking he had no fracture, continued to work and sought no further medical care, although suffering pain and discomfort in his right arm. It was alleged that the standards of radiological practice in Muskegon and similar communities required that defendants inform plaintiff of the fracture after discovering its existence, and that defendants failed to exercise due care in accordance with those standards of practice. Plaintiff further claimed that the continued use of his arm aggravated the fracture, subjecting plaintiff to physical and mental pain; and that, as a result of defendants’ alleged malpractice, he suffered permanent injuries to his right arm, including traumatic radio-ulnar arthritis. Holly’s answer admitted that an X-ray had been taken and that it disclosed a fracture of plaintiff’s right arm. However, the allegations of malpractice were denied. Defendants denied informing plaintiff that the X-ray revealed no fracture. It was alleged that, in accordance with standard radiological practice, a report of the fracture was given to Dr. E. J. Lauretti, the plaintiff’s treating physician. Defendants also denied that plaintiff had suffered any damage as a result of the alleged malpractice. On June 4, 1965, plaintiff, pursuant to OCR 1963, 302.1, deposed Dr. Lamberíais Mulder, a physician who practiced in Muskegon together with Dr. E. J. Lauretti. Mulder’s testimony was taken upon oral examination, with Holly’s counsel appearing on behalf of defendants. Mulder was asked whether his office had received any report of plaintiff’s fracture from Holly. Mulder testified that his office had received a report from Holly’s office disclosing the fracture, but he could not remember when the report was received. He also testified that he first became aware of the report on April 21,1964. On that date, plaintiff had been sent to Mulder’s office by his employer for treatment of his right arm. After reviewing the report, Mulder diagnosed plaintiff’s condition as a nondisplaced fracture of the right arm’s distal radial styloid. A cast was placed on plaintiff’s arm by Dr. Mulder. During the course of his deposition testimony, Dr. Mulder was also asked a lengthy hypothetical question, Plaintiff’s counsel inquired of Mulder whether. in his opinion, a failure to immobilize a non-displaced fracture of an arm’s radial styloid during a three-week period of intensive use of tbe fractured arm could cause traumatic arthritis of tbe arm’s distal ulna. Tbe doctor responded that, assuming arthritis subsequently developed in tbe arm’s wrist, “you’d have to assume that tbe joint bad been aggravated by tbe prolonged period of inadequate immobilization prior to tbe cast application.” On October 29, 1965, plaintiff filed a motion, subsequently granted, to add Mulder and Lauretti as party defendants and to file an amended complaint. Tbe amended complaint likewise charged Mulder and Lauretti with malpractice. As against tbe added defendants, plaintiff claimed that they were informed on or about April 1, 1964 of tbe existence of the fracture, and that thereafter it was their duty to report tbe fracture to plaintiff or to bis employer. Mulder’s failure to act and resulting damage to plaintiff were also alleged. Tbe damages claimed were tbe same as those alleged in tbe suit against Holly. Mulder’s answer denied malpractice. Mulder further denied that plaintiff bad suffered any permanent injuries, including traumatic radio-ulnar arthritis, as a result of any failure to act on his part. At trial, plaintiff called defendant Mulder as an adverse party for cross-examination. See MOLA § 600.2161 (Stat Ann 1962 Rev § 27A.2161); GCR 1963, 507.4. During the course of bis testimony, Mulder acknowledged that tbe answers be gave in bis deposition testimony were true. Thereafter, at tbe conclusion of bis examination of Dr. Mulder, plaintiff’s counsel offered Mulder’s deposition in evidence, relying on “tbe rule which permits tbe use of tbe deposition of tbe opposing party.” Plaintiff’s counsel also relied on tlie ground that Mulder had acknowledged at trial the truth of his deposition testimony. Holly’s counsel objected and took the position that Mulder’s deposition was inadmissible as against the defendant Holly. A precautionary instruction to this effect was requested by Holly’s counsel, but the request was denied. The trial court reasoned : “You had notice of the deposition, you were there, and it is binding on the defendant Holly.” The trial court ruled that plaintiff’s counsel could use Mulder’s deposition for any purpose, including its use as substantive proof as against defendant Holly. Plaintiff’s counsel then read Mulder’s deposition testimony to the jury, including Dr. Mulder’s response to plaintiff’s hypothetical question. In due course, plaintiff’s case against Holly and Mulder went to the jury. A verdict was returned against the defendants-radiologists in the amount of $20,000. As ag’ainst Mulder, the jury found no cause of action. Following denial of a motion for judgment notwithstanding the verdict or for new trial, defendant Holly appeals. It is well settled that in order to recover for the negligence of a physician, plaintiff must show that such negligence was a proximate cause of the injury for which damages are sought. Morgan v. Engles (1964), 372 Mich 514, 516, and cases there cited. And, as a rule, this showing is one requiring expert testimony. See Annotation, “Proximate Cause in Malpractice Cases,” 13 ALR2d 11, 22; Farrell v. Haze (1909), 157 Mich 374; Miller v. Toles (1914), 183 Mich 252. In the present case, plaintiff claimed, in part, that the failure to immobilize his fractured arm caused traumatic arthritis of the arm’s distal ulna. In order to substantiate this claim, the testimony of at least one expert witness was required. This Court bas held that in malpractice actions the plaintiff, if able, is entitled to rely exclusively upon the expert testimony of the very doctor he is suing. See Giacobazzi v. Fetser (1967), 6 Mich App 308. Such is the case here, since the only testimony offered to substantiate the alleged connection between a failure to immobilize plaintiff’s arm and the arthritic condition subsequently found to exist was that of Dr. Mulder given at deposition. On appeal, defendant Holly contends that the judgment below must be reversed since plaintiff failed to prove by competent evidence any causal relationship between Holly’s negligence and an injury for which damages were sought — namely, traumatic arthritis of the right arm’s distal ulna. No claim is made that plaintiff failed to prove malpractice ; however, defendant Holly renews his contention that, as against Holly, Mulder’s deposition testimony — specifically, Dr. Mulder’s response to plaintiff’s hypothetical question — was inadmissible as substantive evidence. For reasons hereafter discussed, we agree. II Use of the Mulder Deposition. The use of a deposition at trial is governed by the provisions of G-CR 1963, 302.4. Subsection (1) of Rule 302.4, upon which plaintiff relies, entitles any party to use a deposition for the purpose of impeaching the testimony of the deponent as a witness. It is obvious, however, that prior to the use of a deposition for impeachment purposes the deponent must first give testimony at trial inconsistent with his testimony at deposition. See Ruhala v. Roby (1967), 379 Mich 102, 113. In the present case, Mulder was never asked by plaintiff’s counsel whether, in his opinion, the failure to immobilize a nondisplaced fracture of an arm’s radial styloid could cause traumatic arthritis of the distal ulna. Impeachment on this issue was, therefore, impossible since Mulder had not testified, when questioned by plaintiff’s counsel, concerning the alleged causal relationship. Contrary to plaintiff’s contention, GrCE. 1963, 302.4(1) provides no basis for the introduction of that portion of the Mulder deposition suggesting that a failure to immobilize plaintiff’s fractured arm might result in traumatic arthritis of the arm’s distal ulna. Nor are we persuaded that Mulder’s acknowledgement at trial of the truth of his deposition testimony established a sufficient foundation for the introduction, as against Holly, of Mulder’s deposition testimony concerning the alleged causal relationship. In this regard, plaintiff relies upon Schratt v. Fila (1963), 371 Mich 238. See also Perry v. F. Byrd, Inc. (1937), 280 Mich 580. In the Schratt case, defendant Fila, when questioned by plaintiff’s counsel at trial, gave testimony in conflict with a statement made by Fila prior to trial. "When confronted at trial with the prior statement, Fila admitted its truth. It was held that, once defendant Fila admitted at trial the truth of the prior inconsistent statement, it was admissible as substantive evidence against defendant Ziegler. We think both Schratt and Byrd, are distinguishable. In the present case, nothing appears in Mulder’s testimony at trial, in response to questions put to him by plaintiff’s counsel, that is inconsistent with his testimony at deposition concerning the alleged causal relationship. We need only repeat that at trial plaintiff’s counsel never asked Mulder whether the alleged malpractice might have caused plaintiff’s present condition — traumatic arthritis of the right arm’s distal ulna. Plaintiff also contends that the Mnlder deposition was admissible in evidence against Holly by virtue of subsection (2) of G-CR 1963, 302.4. That subsection provides: “The deposition of a party * * * may be used by an adverse party for any purpose.” Plaintiff constructs the following argument. Mulder was a party to this litigation; plaintiff was an adverse party. Therefore, Mulder’s statement concerning causation was admissible for any purpose, i.e., as substantive evidence. Furthermore, Rule 302.4 provides that any part of a deposition may be used against any party who was present at the taking of the deposition. Plaintiff concludes that, since defendant Holly was present when Mulder was deposed, Mulder’s statement can be used against Holly as substantive evidence. We disagree. In Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich App 204, 207, this Court explained the use of deposition testimony under subsection (2) of Rule 302.4 as follows: “The difference in the practices allowed in paragraphs (2) and (3) of the Rule is based on the distinction between the status of the deponent as a party capable of making admissions affecting his cause, or the party simply as a witness. Wigmore distinguishes the status of the deponent as well (5 Wigmore on Evidence [3d ed], § 1416, p 194): “ ‘The general rule that the witness must be shown unavailable for testifying in court does not apply to a party’s use of his party opponent’s deposition * * * for the simple reason that every statement of an opponent may be used against him as an admission without calling him.’’ ” (Emphasis supplied.) Subsection (2), thus construed, is merely a restatement of the long recognized rule of evidence that statements of a party which are inconsistent with his claim in litigation are substantively admissible against that same party. Accord, Community Counselling Service, Incorporated v. Reilly (CA 4, 1963), 317 F2d 239, 243. See also, 4 Wigmore, Evidence (3d ed), § 1048, p 2; 4 Moore, Federal Practice (2d ed), § 26.29, p 1653. However, it is an equally well established rule of evidence that the admissions of one defendant are not admissible in evidence against a codefendant. “By hypothesis, an admission is a statement elsewhere made by the present party and now offered against him as inconsistent with and contradictory of his present claim made in the pleadings or evidence. Who, then, is the ‘party’, i.e. the litigating^ person, whose admissions may thus be now turned against himself ? * * * “The probative process consists in contrasting the statements of the same person made now as litigant and made formerly elsewhere, and it is in that view that it becomes necessary to define the identity of the person. It follows that the statements of one who is confessedly a distinct person B do not become receivable as admissions against A merely because. B is also a party. In other words, the admissions of one coplaintiff or codefendant are not receivable., against another, merely by virtue of his position ás' a copartv in the litigation.” 4 Wigmore, Evidence (3d ed),'§ 1076, pp 112, 113, 115. See also, Ruhala v. Roby, supra, at 119. In the present case, Mulder’s testimony at deposition concerning causation was inconsistent with his position at trial. By-his answer, Mulder had denied any relationship between the alleged malpractice and traumatic radio-ulnar arthritis. By definition, Mulder’s statement at deposition constituted an admission. That admission, however, could only be used against Mulder. It could not be employed against defendant Holly. And although Mulder was a party at the time the deposition was offered in evidence, his statement regarding causation was not, thereby, admissible against Holly. Accord, Davis v. Sedalia Yellow Cab Company (Mo App, 1955), 280 SW2d 869. An express provision of Rule 302.1 supports our conclusion. That provision is as follows: _ “At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition * * * .” (Emphasis supplied.) Notwithstanding Holly’s presence at the taking of Mulder’s deposition, Mulder’s response at deposition to plaintiff’s hypothetical question could not be used against Holly at trial for the reason that, as to Holly, his response was inadmissible under the rules of evidence. Two additional reasons lead us to conclude that subsection (2) provides no basis for the use of Mulder’s deposition testimony concerning causation against defendant Holly. The first is the very rationale which forbids use of the admissions of one party against a coparty. “[Ojrdinary fairness would forbid such a license; for it would in practice permit a litigant to discredit an opponent’s claim merely by joining any person as the opponent’s coparty and then employing that person’s statements as admissions. It is plain, therefore, both on principle and in policy, that the state ments of a coparty (while usable of course against himself) are not usable as admissions against a co-party.” 4 Wigmore, Evidence (3d ed), § 1076, p 115. Likewise, were we to accept the construction of subsection (2) urged by plaintiff, we would enable a party-plaintiff to discredit his opponent’s claims merely by joining as codefendant any person from whom plaintiff could obtain at deposition statements contrary to the position of the original defendant. Furthermore, it is clear that had plaintiff brought two separate suits, as he could have, Mulder could only have been employed as a witness in the separate controversy against defendant Holly. Mulder’s deposition in such a suit would be inadmissible in evidence against Holly under subsection (2), GrCR 1963, 302.4, for the reason that Mulder would not be a party to that litigation. "We refuse to permit misapplication of the rules governing use of depositions merely because the two suits can be tried together. Cf. Napier v. Bossard (1939), 102 F2d 467-469. We conclude that it was error to permit the use, as substantive evidence, of Mulder’s deposition testimony concerning causation against defendant Holly. As that testimony was incompetent, plaintiff’s case against Holly, insofar as it alleged a causal relationship between Holly’s negligence and traumatic arthritis of the distal ulna, must fail for want of proof. No other expert medical testimony was offered to substantiate the alleged relationship. It was, therefore, error for the trial court to submit the question of damages for this injury to the jury. Fabbro v. Soderstrom (1930), 252 Mich 455. See also, Brown v. Arnold (1942), 303 Mich 616, 626. Moreover, we are satisfied that the error materially affected the size of the verdict. Defendant is entitled to a new trial. GrCR 1963, 527.1(4). We limit retrial to damages only, as the only error concerned the amount of the verdict. Trapp v. King (1965), 374 Mich 608. We refuse, as requested by defendant Holly, to reverse outright, as a review of the record reveals that plaintiff had, by competent proof, established compensable injuries suffered as a result of Holly’s negligence. Cf. Rogers v. Kee (1912), 171 Mich 551. Plaintiff had alleged and there was proof in support of his claim to damages for pain and suffering. Defendant Holly’s other contentions need not be considered. The judgment is reversed and remanded to the trial court for partial new trial limited to damages only, All concurred. Defendants-appellants are hereafter collectively referred to as “Holly.” Hereafter referred to as “Mulder,” Plaintiff las not appealed the judgment entered in Mulder’s favor against him. It should be noted that there is nothing in the record suggesting any privity of interest or agency existing between Mulder and Holly so as to make Mulder’s admissions equally available as against Holly. See 4 Wigmore, Evidence (3d ed), § 1070, p 69.	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Lesinski, C. J. Plaintiffs brought the instant suit to recover damages under the guest passenger statute for injuries sustained due to defendant’s alleged gross negligence. Defendant Platt was an uninsured motorist and the record discloses that he was not served with a copy of the summons and complaint. Under the Motor Vehicle Accident Claims Act, plaintiffs served the Secretary of State with a summons and complaint. The Secretary of State has defended the case both below and in this Court. Defendant Platt did not appear at trial and apparently has not been located to date. From judgment for plaintiffs, defendant brings this appeal as of right. On August 21, 1966, plaintiffs Clinton Ashford, Georgia Johnson and Gertrude Williams were passengers in a car owned and operated by defendant. While driving on Mount Morris Road near the intersection with Henderson Road in Genesee County, the car went out of control and turned over several times, resulting in physical injuries to the passengers. At trial, after the close of defendant’s proofs, plaintiffs moved for a directed verdict on the issue of liability for gross negligence. The trial court granted the motion, over defendant’s objections, leaving for the jury only the issue of measure of damages. The sole issue raised on appeal is whether the trial court erred in directing the verdict on the issue of gross negligence. Two well-recognized rules apply in the instant case. On a motion for directed verdict, the court must view the evidence in the light most favorable to the party against whom direction is sought. McGrath v. Hargraves (1945), 310 Mich 510. A motion for directed verdict may only be granted where, on the issue directed, the record is such that reasonable minds could not differ. United States Fire Insurance Company v. Grand Trunk W. R. Co. (1955), 344 Mich 270. The elements of gross negligence or willful and wanton misconduct were set forth in Tien v. Barkel (1958), 351 Mich 276, 281, 282, as follows: “ ‘(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’ ” The Tien decision also noted that each guest passenger case is sui generis in its factual circumstances and that no purpose is served by detailed examination of the numerous, and in some instances “irreconcilable,” decisions construing the term gross negligence. As with all gross negligence cases, an examination of the evidence adduced at trial is necessary. Six witnesses testified to the events surrounding the accident: the plaintiffs, the state trooper who arrived at the scene after the accident, and Mr. and Mrs. Zickafoose, who were riding in their car seven or eight hundred feet ahead of defendant’s automobile. The witnesses were all in basic agreement concerning weather and road conditions. The day was dry and clear. Mount Morris Road had a loose gravel surface, pitted with “small chuck holes” at the time of the accident. The plaintiffs testified that although defendant’s driving had not been unreasonable before turning onto Mount.Morris Road, it became quite erratic at that point. Georgia Johnson testified that she rode in the front seat on the passenger side. She stated that she could see the speedometer and that defendant was driving 65 to 70 miles per hour on Mount Morris Road. She repeatedly asked him to slow down, but each time he simply said “okay” and maintained the same speed. She testified that the other passengers made similar requests, only to be met with similar results. She further stated that defendant was weaving across the center of the road. It was her opinion that defendant tried to turn from Mount Morris onto Henderson Road, a right angle turn, but was going too fast. The result was that the ear rolled over several times. Gertrude Williams, who sat in the front between Mrs. Johnson and defendant, also testified that defendant was driving 70 miles per hour and was “zigzagging” down the road. She too stated that she had warned defendant of his excessive speed and that at one point she had said “Lord, we are going to have a wreck.” Clinton Ashford, who was riding in the hack seat, stated that defendant was driving “65, 70 — 65 miles an hour to my estimation.” He stated that after the passengers in the front had asked defendant to slow down and had been ignored, he leaned over the front seat and asked “What’s the rush?” Ashford also testified that defendant was weaving back and forth across the road. He was uncertain as to whether defendant tried to turn onto Henderson Road or whether he swerved to avoid a ditch when the car rolled over. Although the plaintiffs testified that they believed defendant was intoxicated, the three uniformly admitted that they did not see him drinking prior to the accident. They stated that their belief was based solely on defendant’s behavior which they alleged to be “reckless.” As these witnesses are all parties, and thus interested in the result of the suit, a question of credibility arises. The general rule regarding the credibility of witnesses was stated in Michigan Pipe Company v. Michigan Fire & Marine Insurance Company (1892), 92 Mich 483, 488: “To justify a court in instructing a jury that a witness has told the truth, and in directing a verdict based upon the truthfulness of his evidence, there must be nothing in the circumstances or surroundings tending to impeach the witness, or to throw discredit upon his statements. If there is anything tending to create distrust in his truthfulness, the question must be left to the jury. Druse v. Wheeler, 26 Mich 195.” (Emphasis supplied.) In the instant case, however, with the sole exception of the alleged warnings given defendant, the sub stance of each of the allegations concerning defendant’s actions is supported by not only plaintiffs’ witnesses, but also the defense witnesses. Herman Zickafoose, a witness called by defendant, testified that he observed defendant’s car in his rear-view mirror while riding approximately seven to eight hundred feet ahead of defendant. He stated that he was traveling at about 40 to 45 miles per hour, and that while he could give no exact estimate of defendant’s speed, defendant’s car “looked as if it was coming pretty fast, and it might be like it was— weaving around in the road.” Emma Zickafoose, another defense witness, also testified that she looked back and saw defendant’s car “coming at a pretty good speed.” The state trooper, called by plaintiff, stated that when he arrived at the scene the car was lying on its “top or side.” It was his opinion that the cause of the accident was excessive speed for the road conditions. He issued a speeding ticket to defendant. He also testified that he could smell alcohol on defendant’s breath. We are, thus, presented with a case where not only are plaintiffs’ versions of the accident completely uncontradicted, but also where all the elements tending to establish gross negligence, which are capable of verification by impartial witnesses, are supported by both defendant’s own witnesses and the investigating officer from the Michigan State Police. As stated by the Court in Holbert v. Staniak (1960), 359 Mich 283, 290: “Where the testimony as to a fact is not disputed, the jury should be instructed to find it accordingly. Dondero v. Frumveller, 61 Mich 440. “Where all of the evidence on both sides tends clearly to prove a fact, such fact may, and generally should, be assumed as proved; and in such case a charge to the jury indicating that it is competent for them to find either way is error. Druse v. Wheeler, 26 Mich 189.” See, also, Ortega v. Lenderink (1968), 10 Mich App 190. Defendant argues that numerous inconsistencies exist in the testimony of the three plaintiffs. A review of the record, however, satisfies us that if inconsistencies exist at all, they are not relevant to the central fact issue of the case, which is: what was defendant’s conduct as he drove down Mount Morris road? We conclude, therefore, that where, as here, there is uncontradicted testimony that defendant was weaving back and forth while driving 65 to 70 miles per hour down a loose gravel road, pitted with chuckholes, all the while ignoring numerous warnings by all three passengers, and where all these elements except the warnings are supported in substance by the testimony of defendant’s own witnesses, reasonable minds could not differ in concluding that defendant was guilty of gross negligence. The trial court was correct in directing the verdict on issue of gross negligence. Affirmed. Costs to plaintiffs. MOLA § 257.401 (Stat Aim 1968 Rev § 9.2101). MCLA § 257.1105 (Stat Ann 1968 Rev § 9.2805). Plaintiff Otis Johnson sues to recover the medical expenses of Uis wife, Georgia Johnson, allegedly resulting from the accident. The jury returned verdicts in the amount of $1,500 for Clinton Ashford, $5,000 for Georgia Johnson, $879.87 for Otis Johnson, and $7,000 for Gertrude Williams. Reference hereinafter to plaintiffs includes only those who were passengers in defendant’s vehicle, unless otherwise indicated. The estimate of this distance was given by Mr. Zickafoose in liis testimony.	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Per Curiam. On July 10,1963, the municipal court for the city of Muskegon Heights granted defendant, Associates Loan Company, a consent judgment against the plaintiff. The judgment was not recoverable on a voluntary basis, and was transcribed to the Mqskegon circuit court on November 15, 1963. Subsequently, several writs of garnishment were issued in an unsuccessful attempt to satisfy the judgment. On August 3, 1964, a writ of execution was issued from the Muskegon county circuit court, and pursuant thereto, levy was made on plaintiff’s 1955 model automobile which he claimed was exempt from levy by virtue of MCLA § 600.6023a(5) (Stat Ann 1970 Cum Supp § 27A.6023a[5]). Plaintiff never attempted to contest this levy by judicial proceedings, but rather filed suit on September 30, 1964, alleging an abuse of process. At the conclusion of plaintiff’s proofs, the trial court granted a summary judgment in favor of defendants. There are two elements necessary to prove an abuse of process. “First, an ulterior purpose must be shown. Second, defendant must perform an act which is improper in the regular conduct or prosecution of a proceeding.” Pilette Industries, Inc., v. Alexander (1969), 17 Mich App 226, 227, 228. Garnishment after judgment is a legitimate and frequently-used procedure to satisfy a claim evidenced by a judgment; MCLA § 600.4011 (Stat Arm 1962 Rev § 27A.4011); and the same can be said for a writ of execution on assets of the debtor. MCLA § 600.6001 et seq. (Stat Ann 1962 Rev § 27A.6001 et seq.). Although the particular property might have been exempt from execution under MCLA § 600.6023a(5) (Stat Ann 1970 Cum Supp § 27A.6023a[5]), it cannot be said that execution was for some ulterior purpose as the debt is admittedly owed. After considering all available evidence in a light most favorable to the plaintiff, Lepley v. Bryant (1953), 336 Mich 224, the trial judge did not err in granting summary judgment to the defendant. Affirmed. Costs to defendant.	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Per Curiam. The parties hereto were divorced on December 16, 1963, and custody of their minor child was awarded to defendant mother. On February 8, 1964 defendant left the child with plaintiff to go to California to remarry. On February 13, 1964 the father petitioned the court for a change of custody and cancellation of support order. The support order was modified, but the court did not specifically order a change in custody. In July, 1967 defendant mother filed a petition for an order to show cause why plaintiff should not be cited for contempt for failure to observe the original decree as to custody. The order was denied. Upon appeal to this Court the denial of the order was upheld and the matter was remanded for the entry of a current order of custody (see Dimmick v. Dimmick [1968], 15 Mich App 7). Upon a petition of defendant, couched in the following language, the present hearing was had and custody continued in plaintiff father: “WHEREFORE, your petitioner prays: “1st. That this court set a date certain for a hearing in compliance with the decision of the Court of Appeals in Dimmick vs. Dimmick; and if at such hearing the respondent is unable to show that said petitioner is an unfit and improper person to have the care, custody and control of the minor child, that the court enter its Order requiring him to immediately deliver possession of this said child to the petitioner so that she will not only have legal custody but possession of said child. “2nd. That this court modify the order entered in this case on the 24th day of February, 1964 so as to reinstate support as ordered by the Judgment of Divorce and to direct the return of the possession of the minor child to the petitioner herein.” Upon appeal defendant contends that the court improperly held a hearing to determine custody. The petition of defendant requested a hearing in accord with the decision of the Court of Appeals. Plaintiff’s answer also indicated that such a hearing would be held. The pleadings of the parties provided adequate notice to defendant that a hearing would be had with regard to custody. There was no error in conducting such a hearing. The February, 1964 decision of the lower court has subsequently been interpreted in several proceedings, and it has been indicated that a modification of the divorce decree with respect to custody was intended. This interpretation is supported by the actions of the lower court and is a proper one under the circumstances. The hearing in the instant case therefore was merely a clarification of the earlier decision modifying the divorce decree. The order granting custody to the father based on the overriding consideration of what is for the best interest of the child and contrary to CL 1948, § 722-.541 (Stat Ann 1957 Rev § 25.811) is clearly supported by the record and we find no abuse of discretion. Affirmed, with costs to plaintiff.	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Blair Moody, Jr., J. The issue is whether plaintiffs have made a prima facie showing under the Michigan environmental protection act, MCL 691.1201 et seq.; MSA 14.528(201) et seq., that the drilling of ten exploratory wells in the Pigeon River Country State Forest will constitute a likely impairment or destruction of natural resources. We hold: I) that the question of the likely effects of the ten exploratory wells was properly before the trial court; II) that the trial judge erred in deferring to the Department of Natural Resources conclusions as to the likelihood of impairment of natural resources rather than exercising his own totally independent judgment; III) that the evidence adduced at trial conclusively demonstrates that the drilling of the ten exploratory wells for which permits have been granted will likely result in an impairment or destruction of elk. Plaintiffs have thereby made out a prima facie case under MCL 691.1203(1); MSA 14.528(203)(1). We reverse and remand to the trial court for entry of a permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August 24, 1977. Facts In 1968 the Department of Natural Resources (DNR) sold oil and gas leases covering 546,196.89 acres of state-owned land, including 57,669 acres in what is now known as the Pigeon River Country State Forest (Pigeon River Forest or Forest). Since that time, 19 oil and gas wells have been drilled in the Forest, five of which have been and are now producing wells. Over a period of years, various plans to provide for controlled oil and gas development in the Forest were considered by the DNR. A management plan (the "limited development plan”), allowing oil and gas development in the southern one-third of the Forest while prohibiting development in the northern two-thirds, was submitted by the Director of the DNR, Howard Tanner, to the Natu ral Resources Commission (NRC). The DNR was asked to prepare an Environmental Impact Statement with respect to this management plan. In December, 1975, the Environmental Impact Statement (EIS) was completed. The DNR then commenced negotiations with oil companies holding leases in the Forest in an attempt to have them agree to the development scheme set forth in the proposed management plan. On June 11, 1976 the NRC entered into an agreement entitled "Stipulation Consent Order” with Shell Oil Company, Amoco Production Company, and Northern Michigan Exploration Company. The consent order adopted the limited development plan allowing oil and gas development in the southern one-third of the Forest, subject to certain enumerated conditions and restrictions. The West Michigan Environmental Action Council (WMEAC) and the Pigeon River Country Association (PRCA) filed a motion to intervene in In the Matter of Hydrocarbon Development in the Pigeon River Country State Forest and moved for a hearing to be held on the June 11, 1976 consent order. On August 13, 1976 the NRC rejected this motion on the basis that it was premature and should properly be granted only when permits were applied for. On June 12, 1977 Shell Oil Company applied for permits to drill ten exploratory wells in the limited development region. On August 24, 1977 the Supervisor of Wells granted these permits. On September 17, 1976 plaintiffs filed the com plaint in this action under the Michigan environmental protection act claiming that the consent order was entered into unlawfully and was likely to lead to the impairment of wildlife in the Forest. Plaintiffs sought an order restraining the state from issuing any permits to drill for oil and/or gas in the Forest or from implementing the June 11, 1976 consent order. On December 5, 1977 the court rendered its final decision against plaintiffs and denied a motion for a stay and/or injunctive order pending appeal. On December 7, 1977 an appeal was filed in the Court of Appeals. The Court of Appeals denied plaintiffs’ motion for an injunctive order pending appeal on December 15, 1977. The following day plaintiffs filed an application for leave to appeal with this Court and requested an injunction pending that appeal. On December 22, 1977 this Court granted the injunctive request. 402 Mich 836 (1977). Later, on January 5, 1978 we granted the motion for an appeal prior to decision by the Court of Appeals. 402 Mich 845 (1978). I The record below is unclear as to what conduct of defendants is alleged as being "likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein”. MCL 691.1203(1); MSA 14.528(203X1). Specifically, it is uncertain whether the action of the Supervisor of Wells in granting ten permits on August 24, 1977 to drill exploratory wells for oil and gas was a part of such conduct. Part of the confusion resulted from plaintiffs’ failure to amend their September, 1976 complaint to specifically attack the validity of the permits issued in August, 1977, despite their offer to do so at an October, 1977 pretrial conference, As a result, there was uncertainty in the proceedings below as to whether the validity of the permits was ever properly put in issue before the court. Nonetheless, all parties presented evidence on the likely effect of the drilling of the ten wells. Furthermore, the trial court chose to address the issue of the likelihood of pollution, impairment or destruction from the drilling activities contemplated by the ten permits. We conclude that the issuance of the permits to drill ten exploratory wells was properly before the circuit court as conduct alleged to be likely to pollute, impair and destroy the air, water or other natural resources or the public trust therein. The effects of these permits were comprehensively treated at the trial level, both by the parties and by the circuit judge. Further, the consent order, which the trial court recognized was designed to be a "legally enforceable” document, stated that "[a]s many as ten test wells may be drilled for verification of seismic information. Specific drilling locations for these wells shall be determined by the oil companies and the director in consultation with the Public Service Commission”. Therefore, plaintiffs’ allegation that the consent order is likely to lead to pollution, impairment or destruction of the natural resources of the Pigeon River Country State Forest can fairly be said to include within it an allegation that the issuance of permits for drilling test wells will have such result, the issuance of these permits being an inevitable consequence of the adoption of the consent order. II Plaintiffs allege that the trial court deferred to the DNR’s conclusion that no pollution, impairment or destruction of the air, water or other natural resources or the public trust therein was likely to result from the contemplated drilling. Plaintiffs claim that such deference constituted error by the trial court and that the court had a responsibility to independently determine whether such pollution, impairment or destruction would occur. We agree that the trial court so erred. While we understand the trial judge’s reluctance to substitute his judgment for that of an agency with experience and expertise, the Michigan environmental protection act requires independent, de novo determinations by the courts. The act declares that "[principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act”. MCL 691.1203(1); MSA 14.528(203X1). Furthermore, the Legislature specifically addressed the relationship between suits brought under the environmental protection act and administrative proceedings: "(2) If administrative, licensing or other proceedings are required or available to determine the legality of the defendant’s conduct, the court may remit the parties to such proceedings which proceedings shall be conducted in accordance with and subject to the provisions of Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.313 of the Compiled Laws of 1948. In so remitting the court may grant temporary equitable relief where necessary for the protection of the air, water and other natural resources or the public trust therein from pollution, impairment or destruction. In so remitting the court shall retain jurisdiction of the action pending completion thereof for the purpose of determining whether adequate protection from pollution, impairment or destruction has been afforded. "(3) Upon completion of such proceedings, the court shall adjudicate the impact of the defendant’s conduct on the air, water or other natural resources and on the public trust therein in accordance with this act. In such adjudication the court may order that additional evidence be taken to the extent necessary to protect the rights recognized in this act. "(4) Where, as to any administrative, licensing or other proceeding, judicial review thereof is available, notwithstanding the provisions to the contrary of Act No. 306 of the Public Acts of 1969, pertaining to judicial review, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.” (Emphasis supplied.) MCL 691.1204; MSA 14.528(204). Additionally, § 5 of the act states in relevant part: "(2) In any such administrative, licensing or other proceedings, and in any judicial review thereof, any alleged pollution, impairment or destruction of the air, water or other natural resources or the public trust therein, shall be determined, and no conduct shall be authorized or approved which does, or is likely to have such effect so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.” (Emphasis supplied.) MCL 691.1205; MSA 14.528(205). The above sections provide that the court in which suit is filed retains original jurisdiction of the matter, even if it chooses to remit parties to administrative proceedings. Moreover, the court has a responsibility to "adjudicate” and "determine” whether "adequate protection from pollution, impairment or destruction has been afforded”. Courts can discharge their responsibility to make such determinations only if they make independent, de novo judgments. In fact, MCL 691.1204(4); MSA 14.528(204)(4), specifically indicates that the usual standards for review of administrative actions under the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., are inapplicable once an environmental protection act case has been filed in a circuit court. The environmental protection act would not accomplish its purpose if the courts were to exempt administrative agencies from the strict scrutiny which the protection of the environment demands. Shortly after the environmental protection act was passed, its chief legislative sponsor stated that "[ujnder the new statute, courts may inquire directly into the merits of environmental controversies, rather than concern themselves merely with reforming procedures or with invalidating arbitrary or capricious conduct”. The Court has previously acknowledged: "In the final analysis the very efficacy of the EPA will turn on how well circuit court judges meet their responsibility for giving vitality and meaning to the act through detailed findings of fact.” Ray v Mason County Drain Commissioner, 393 Mich 294, 307-308; 224 NW2d 883 (1975). Therefore, we conclude that the trial judge erred in failing to exercise his own totally independent judgment. We find, however, no need to order remand because we conclude that a judgment in favor of plaintiffs is required on the record presented. Ill Defendants in this case have not sought to raise any affirmative defenses under MCL 691.1203(1); MSA 14.528(203)(1), but, rather, have rested their case on a denial that plaintiffs have made a prima facie showing that the conduct of defendants has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein. We find that plaintiffs have demonstrated a likelihood of impairment or destruction of natural resources, specifically of elk, as a result of the proposed drilling of ten exploratory wells. There is little, if any, dispute that the drilling of the exploratory wells will have some adverse impact upon some wildlife, particularly elk, bobcat and bear. The trial court found that "[t]here appears to be no question that adverse impacts will be visited upon particularly the elk, and to some lesser extent, bear and bobcat. * * * It is clear that an adverse impairment of the herd is likely for some unknown period to some unknown degree”. Perhaps the single most revealing piece of evidence is the Environmental Impact Statement for Potential Hydrocarbon Development in the Pigeon River Country State Forest, prepared by the DNR. Some of this statement concerns the impact of production of oil and is not relevant for present purposes. However, many of the EIS’s conclusions directly apply to the effects of exploratory drilling. Testimony before the trial court indicated that six of the ten proposed sites were not adjacent to any road, requiring that roads be built to such sites. The EIS cites studies in Montana, by the Intermountain Forestry and Range Experiment Station, 1973, which concluded that "[e]lk avoid roads even when there is no traffic”. The EIS also observed that "[w]hether the elk will return to their former range following completion of the last seismic survey work is unknown”. Seismic survey work precedes exploratory drilling and it is designed to determine whether oil might be in an area; exploratory wells are then drilled to determine if production efforts are warranted. Seismic survey work occurs over a less prolonged period than exploratory drilling and yet, apparently, may result in an extended absence of the elk to the extent that it is uncertain whether or not they will return. Exploratory drilling obviously exacerbates this problem and, in fact, the EIS notes, "with the possibility of drilling and production development following the survey, an early return by the elk is doubtful”. The EIS observes that "[t]he most pressing need of Michigan elk is to protect their range against further human intrusion for purposes other than timber or wildlife management”, and that the last remaining sanctuaries against the disturbance of oil and gas development have now disappeared. It concludes: "Additional disturbances from hydrocarbon development, new roads, initial drilling activities, and the presence of facility sites will significantly reduce elk numbers in the proposed area. It is likely that much of the existing herd will not remain in revised Unit 1, but will spread out to the northern areas of the PRCSF and to private lands. However, private lands also may be impacted by hydrocarbon development. An unknown number will not survive since habitat is ñnite. A viable population may survive, however, if intensive management efforts are established in priority areas in the northern PRCSF and if poaching can be substantially decreased throughout the elk range.” (Emphasis supplied.) The EIS also found that bobcats are "expected to retreat in the face of hydrocarbon development. The history of this species indicates a high degree of incompatibility with the works of man”. With respect to bears, the EIS states "[bjears have been pressed into wild areas of diminishing size by the increasing pressures of land development and other human disturbances throughout much of the northern Lower Peninsula. * * * It is expected that the one to two percent of the land which will be intensively developed as sites will have less impact on bears than will the development of service roads with resultant multiplied human activities and increased human contact”. Some quantification of the adverse impact of exploratory drilling on the elk can be gained from comparing the EIS’s Matrix for Proposed Hydrocarbon Development in the Southern Portion of the Forest with Dr. Inman’s testimony. Dr. Inman, who participated in the development of the EIS, testified that a slow , recovery time is considered to be 40 to 50 years or more, a short recovery time less than 20 years, and a great recovery time is about 100 years or more. The Environmental Impact Matrix predicts that elk will be adversely affected by the development of roads and pads. These are associated with even exploratory drilling. The Environmental Impact Matrix defines a significant adverse impact as "a change in the element that is impacted from its present status to a status that may take a long time for recovery, at least during the duration of the project”. Applying Dr. Inman’s definitions of what constitutes a slow recovery time to the ma trix predictions, it would appear that elk would avoid the impacted areas for 40 to 50 years. As noted above, the trial court conceded that the exploratory drilling would have an adverse effect upon wildlife. However, the trial court determined that this adverse impact did not constitute impairment or destruction of a natural resource because such adverse impacts are "commonly the result of management decisions. Improving deer habitat by cutting trees to allow the sun to shine on the forest floor for the purpose of new growth, it certainly has an adverse impact upon the animals, birds, so forth, using the trees. Eradicating the entire fish population in a lake or stream to destroy unwanted trash species in order to plant more acceptable fish certainly has an adverse impact on the fish killed but is an acceptable management technique. * * * These animals, along with the trees that will be cut, harvested, or otherwise removed, are the innocent victims of the discovery of oil in their forest domain”. This determination reveals a fundamental misconception. If nature is allowed to pursue its own course, the growth and expansion of some species will inevitably result in the diminution and possible extinction of others. Faced with a situation where an adverse impact will occur naturally unless some action is taken, it is a management decision to determine whether such natural processes should proceed or whether, through human intervention, the adverse impact should artificially be shifted to other species. The choice is not whether an adverse impact will occur, but, rather, upon what. If oil or gas development does not take place, the oil and gas will not be adversely impacted. On the other hand, if such development does take place, wildlife is adversely affected. Thus, the choice is whether or not any adverse impact on natural resources will be allowed. We recognize that virtually all human activities can be found to adversely impact natural resources in some way or other. The real question before us is when does such impact rise to the level of impairment or destruction? The DNR’s environmental impact statement recognizes that "[e]lk are unique to this area of Michigan” and that the herd is "the only sizable wild herd east of the Mississippi River. Several attempts to introduce elk elsewhere in Michigan have been unsuccessful”. It is estimated that the herd’s population, which numbered in excess of 1500 in 1963, now probably lies between 170 and 180. Expert testimony has established that the Pigeon River Country State Forest, particularly unit 1 in which the exploratory drilling is to take place, provides excellent habitat for elk and that the elk frequent this area. Furthermore, it is clear from the record that available habitat is shrinking. The result of a further shrinkage of this habitat by the intrusion of exploratory drilling and its concomitant developments is that "an unknown number [of elk] will not survive”. In light of the limited number of the elk, the unique nature and location of this herd, and the apparently serious and lasting, though unquantifiable, damage that will result to the herd from the drilling of the ten exploratory wells, we conclude that defendants’ conduct constitutes an impairment or destruction of a natural resource. Accordingly, we reverse and remand to the trial court for entry of a permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August 24, 1977. Williams, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J. Levin, J. The issue is whether plaintiffs made a prima facie showing under the environmental protection act that the drilling of ten exploratory wells in Unit 1 of the Pigeon River Country State Forest will constitute a likely impairment or destruction of natural resources. We would vacate the judgment of the trial court and remand to it for further proceedings, retaining jurisdiction. I In 1968 the Department of Natural Resources (DNR) sold oil and gas leases covering 546,196.89 acres of state-owned land including 57,669 acres in what is now known as the Pigeon River Country State Forest (PRCSF). Since that time, 19 oil and gas wells have been drilled in the PRCSF, 5 of which are producing wells. Over a period of years, various plans to control oil and gas development in the PRCSF were considered by the DNR. A management plan, allowing oil and gas development in the southern one-third of the PRCSF while prohibiting development in the northern two-thirds, was submitted by the Director of the DNR to the Natural Resources Commission (NRC). The DNR was asked to prepare an Environmental Impact Statement (EIS) with respect to the management plan, which was completed in December, 1975. The DNR then negotiated with oil companies holding leases in the PRCSF in an effort to have them agree to the management plan. On June 11, 1976 the NRC entered into a "Stipulation Consent Order,” intended to be legally binding, with Shell Oil Company, Amoco Production Company, and Northern Michigan Exploration Company. The consent order adopted the management plan allowing oil and gas development in the southern one-third of the PRCSF, subject to certain conditions and restrictions. Plaintiffs West Michigan Environmental Action Council and the Pigeon River Country Association moved to intervene in administrative proceedings concerning the consent order and sought a hearing. On August 13, 1976 the NRC rejected this motion on the basis that it was premature and could properly be granted only when permits were applied for. On June 12, 1977 Shell Oil Company applied for permits to drill ten exploratory wells in the limited development region and on August 24, 1977 the Supervisor of Wells granted these permits. Before the permits were applied for, on September 17, 1976, plaintiffs commenced this action under the environmental protection act claiming that the consent order was not lawfully entered into and was likely to lead to impairment of wildlife in the PRCSF. They sought an order restraining the state from issuing any permits to drill for oil or gas in the PRCSF or in any other way implementing the consent order. On December 5, 1977 the court found against plaintiffs and denied a motion for a stay pending appeal. We granted leave to appeal prior to decision by the Court of Appeals and injunctive relief pending appeal. II Plaintiffs contend that the judge deferred to the DNR’s conclusion that no pollution, impairment or destruction of the air, water or other natural resources or the public trust therein was likely to result from the contemplated drilling. The judge’s comments in this regard are unclear, but are subject to that construction. We agree with the plaintiffs that such deference would constitute error. A judge has a responsibility to determine independently whether pollution, impairment or destruction is likely to occur. While we can understand a judge’s reluctance to substitute his judgment for an agency’s informed decision, a stance generally appropriate when reviewing decisions of an administrative agency, the environmental protection act provides for a separate, independent determination by a court. Not only does the act declare that "[principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act”, the Legislature specifically addressed the relationship between actions brought under the environmental protection act and administrative proceedings. The usual standards for review of administrative actions under the Administrative Procedures Act are not applicable. As recently stated in Superior Public Rights, Inc v Department of Natural Resources, 6 Env L Rptr 20435, 20437 (Ingham Circuit Court [1976]), where this issue was raised: "[T]o rule that the reviewing court is bound by the administrative fact finding would be but to destroy one of the central thrusts and purposes of [MEPA] — to watchdog the controlling governing agencies themselves in order to guarantee that they do not by inadvertence become the captives of the very entities they are seeking to control and/or fail to recognize, due to ingrained myopia, inertia and bureaucratic complacence, the very environmental dangers they were established to prevent.” (Digest.) Ill Defendants have not sought to raise affirmative defenses under the environmental protection act, but have rested on a denial that plaintiffs made a prima facie showing that the conduct of defendants is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein. There is little dispute that drilling the exploratory wells will have adverse impact upon some wildlife, particularly elk, bobcat and bear. The judge found that "[t]here appears to be no question that adverse impacts will be visited upon particularly the elk, and to some lesser extent, bear and bobcat. * * * It is clear that an adverse impairment of the herd is likely for some unknown period to some unknown degree”. He determined, however, that this adverse impact did not constitute impairment or destruction of a natural resource because such adverse impacts are "commonly the result of management decision. Improving deer habitat by cutting trees to allow the sun to shine on the forest floor for the purpose of new growth, it certainly has an adverse impact upon the animals, birds, so forth, using the trees. Eradicating the entire fish population in a lake or stream to destroy unwanted trash species in order to plant more acceptable fish certainly has an adverse impact on the fish killed but is an acceptable management technique. * * * These animals, along with the trees that will be cut, harvested, or otherwise removed, are the innocent victims of the discovery of oil in their forest domain.” He particularly relied on the testimony of Dr. Inman, who had expressed the opinion that, although the drilling would have an adverse impact on certain species of animals, it would not have an adverse impact on the overall environment of the forest. The examples of management technique offered by the judge are inapposite. If nature is allowed to take its own course, the growth and expansion of some species may result in the diminution and possible extinction of others. Faced with a situation where an adverse impact may occur naturally unless some action is taken, it is a management decision to determine whether such natural processes should proceed or whether, through human intervention, the adverse impact should be shifted to other species. That choice, however, is not whether an adverse impact on a natural resource will occur at all but what species will bear the burden of it. The Environmental Impact Statement states that "[e]lk are unique to this area of Michigan” and that the herd is "the only sizeable wild herd east of the Mississippi River. Several attempts to introduce elk elsewhere in Michigan have been unsuccessful”. (Emphasis supplied.) It is estimated that the herd’s population, which numbered in excess of 1500 in 1963, is now probably between 170 and 180. Testimony established that the PRCSF, particularly Unit 1 in which the exploratory drilling is to take place, provides a favorable habitat for elk and that elk have frequented the area. Further, the available habitat is shrinking. It appears that the result of a further shrinkage by the intrusion of exploratory drilling is that some elk will not survive. In light of the limited number of elk and the unique nature and location of this herd, there is evidence that defendants’ conduct may impair or destroy a natural resource. We refrain, however, from deciding whether plaintiffs made a prima facie case that defendants’ conduct is likely to impair or destroy a natural resource within the meaning of the environmental protection act for reasons stated in part IV, infra. IV The complaint alleged: "The [consent] order will or is likely to lead to pollution, impairment and/or destruction in the natural resources of the [Pigeon River Country State Forest].” At the trial, it was unclear whether the conduct so alleged as "likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein” was or should be treated as limited to the effects of the consent order or whether it included the effects of issuing ten permits to drill exploratory wells for oil and gas. Eleven months after the complaint was filed, in August, 1977, the Supervisor of Wells, pursuant to the consent order, granted ten permits to drill exploratory wells. Plaintiffs then sought an injunction restraining the oil companies from exercising their rights under the permits. The circuit court denied a preliminary injunction. In September, 1977 plaintiffs appealed to the Court of Appeals which denied relief because no drilling activity could occur under the permits between then and November 30 and plaintiffs therefore would suffer no irreparable harm by denial of injunctive relief. Noting that there had not yet been a trial on the merits, the Court of Appeals ordered: "This cause be, and the same hereby is remanded for immediate trial which shall commence on or before October 10, 1977 and proceed to conclusion on an expedited schedule.” The Court of Appeals, thus, apparently expected that the validity of the ten drilling permits would be contested at the trial on plaintiffs’ original complaint. Plaintiffs did not amend their complaint to specifically attack the validity of the permits. The judge indicated that he would allow such an amendment, but none was filed. As a result, there was uncertainty at the trial whether the propriety of issuing the permits themselves was properly in issue. Plaintiffs presented evidence on and argued the likely effect of drilling ten wells. The judge, in his findings of fact, ultimately ruled that such effects were not in issue. He said, however, that although the effects of drilling the ten wells were "not well pled and with no attempt to amend, * * * in consideration of the court’s perhaps too liberal policy in giving the plaintiffs leeway”, he had addressed the issue of the likelihood of pollution, impairment or destruction from the drilling activities contemplated by the ten permits. The consent order stated that "[a]s many as ten test wells may be drilled for verification of seismic information. Specific drilling locations for these wells shall be determined by the oil companies and the director in consultation with the Public Service Commission”. While the question of production was left unresolved by the consent order, some test wells were to be drilled. It was only their location that was to be determined by the Director of the DNR. Plaintiffs’ allegation that the consent order is likely to lead to pollution, impairment or destruction of the natural resources of the PRCSF can fairly be said to include within it the effect of issuing permits for drilling test wells, the issuance of the permits being an inevitable consequence of the adoption and implementation of the consent order. We would, however, remand to the circuit court for further proceedings because the defendants may have been denied an opportunity to present evidence on the issue of likely impairment or destruction from the drilling of ten test wells by a belief, shared by the judge, that the effect of test drilling was not in issue. We would vacate the judgment of the trial court and remand to it for further proceedings, and retain jurisdiction. Coleman, C.J., and Kavanagh, J., concurred with Levin, J. Similar consent orders were later negotiated with Sun Oil Company, Michigan Consolidated Gas Company, Getty Oil Company, and Chevron Oil Company, such that the only oil and gas lease in the Forest not covered by a consent order was that for Corwith 1-22, the subject of litigation in Michigan Oil Co v Natural Resources Commission, 406 Mich 1; 276 NW2d 141 (1979). Press release, Michigan Passes Landmark Environmental Law, July 2, 1970, State Representátive Thomas Anderson. The record supports this finding. Gary Boushelle, the DNR wildlife biologist who approved the ten sites, agreed that there would be a "severe adverse environmental effect for some wildlife species”. E. Ford Kellum, a wildlife biologist and a former employee of the DNR, stated that Unit 1 of the Forest, in which the exploratory drilling is to occur, has "unique, almost endangered species, elk, bear and bobcat, osprey and a bald eagle, of which this was the center of where it looked like if they were going to survive the human race it’s gonna’ be here”. Mr. Kellum testified that his experience at Charlton 1-4 and other wells led him to the observation that once drilling occurred in an elk habitat the elk no longer returned there. Mr. Ned Caveney, the area forester in charge of the Forest, stated that it has been necessary to restrict snowmobiles in the Forest, even though each snowmobile represented only a temporary intrusion, in order "to improve and increase favorable elk habitat, and * * * to provide seclusion for wildlife”. Mr. Robert Strong, the district wildlife biologist in Gaylord, in charge of overseeing development of management plans for elk, bear and bobcat, noted that elk need large blocks of land since they normally range over 10 to 25 miles. He noted that the area in which the proposed drilling is to take place presently provides excellent habitat for elk, is within their range, and that they are commonly seen there. He stated that each well site would adversely affect elk up to two to three miles away. Mr. Strong also stated his opinion that the effect on wildlife did not differ "whether there was 10 or 40” wells drilled, and concluded that a logical environment defense line for elk would rule out any further well drilling in that Forest. Mr. Strong further testified that there has been a steady decline in bobcat population due to loss of habitat and increased development, and that the drfiling of wells would have an adverse effect on bear and bobcat although he could not qualify within what radius each site would affect those animals. Nelson Johnson, Jr., the DNR regional wildlife biologist for the northern half of the Lower Peninsula, agreed with Mr. Strong’s statement that elk would be adversely affected within a two- to three-mile radius around each drilling site. Mr. Johnson stated that the sites proposed for. drilling offered good habitat for elk, and had previously noted the effects of a reduction in available habitat in his testimony in Michigan Oil Co v Natural Resources Commission, supra. In that case he had stated: "If they drill a well, there are not going to be a lot of elk, and bobcats and bear drop dead. But because of their aversion to this type of thing — especially the elk — and the history of how this animal has become almost extinct over almost 80 to 95 percent of its former range, indicates it is a sensitive animal. Their pattern of use of the area is going to be disrupted, and we believe and think that our research which we have carried on in our state in the past — this elk herd is going to be less able to make use of the range and therefore, since there is a limited place where they can go, sooner or later it is going to result in decrease of their population.” Dr. Donald Inman, of the Office of Environmental Review of the DNR, stated in a letter that the results of drilling in the Forest would be "that those species of wildlife for which pqople value the Forest and those which are susceptible to man-made disturbances will, in all probability, be reduced in number”. MCL 691.1201 et seq.; MSA 14.528(201) et seq. In 1973, the DNR published a "Concept of Management” for the PRCSF. In January, 1975, a specific proposal for unitized development of the oil and gas in the PRCSF was presented to the DNR. A revised proposal was presented in October, 1975 which was published for public comment and review. Similar consent orders were later negotiated with Sun Oil Company, Michigan Consolidated Gas Company, Getty Oil Company, and Chevron Oil Company. However, Corwith 1-22, the subject of Michigan Oil Co v Natural Resources Commission, 406 Mich 1; 276 NW2d 141 (1979), was not covered by a consent order. MCL 691.1203(1); MSA 14.528(203X1). MCL 691.1204, 691.1205; MSA 14.528(204), 14.528(205). MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 691.1203(1); MSA 14.528(203X1). MCL 691.1203(1); MSA 14.528(203)(1). The consent agreement states with respect to production of oil and gas: "It is further agreed by the parties that before production of oil and gas takes place in the limited development region, the oil companies shall submit to the Director for his approval a development plan and an environmental assessment.” (Emphasis supplied.)	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Per Curiam. Plaintiff Fannon, discharged from his clerical job with the City of Southfield, has raised issues on this appeal involving, inter alia, excessive punishment, due process of law, and protected union organizational rights. We order that Fannon’s punishment must be reconsidered, and remand for further proceedings. Fannon was hired by the city in 1974 and performed his duties ably until his discharge. He was discharged because of insubordination and violation of trust. In May of 1975, Fannon took a list of employees’ names and addresses to a union organizer who copied the list and mailed union solicitation information to the employees. The list was compiled in connection with health insurance coverage for city employees. A city employee complained of the mailing, to her home, of union information, and city officials investigated how the home addresses had been obtained. Fannon refused to answer certain questions during the investigation although he did acknowledge, in response to a question at the final questioning session about the release of the list, that he was involved in union activities. Because of the parallel between the facts of this case and the facts of Brown v Department of State Police, 392 Mich 811 (1974), we conclude, as we did in Brown: "Discharge was manifestly an excessive and arbitrary discipline unjustified on this record.” In Brown, a State Police officer was discharged for entering government offices under his supervision, copying certain documents found there, showing this information to third parties, and at first refusing to answer certain questions thereon. The release of a list of names is not specifically covered by § 12.1 of the city’s civil service rules, and the city’s response to Fannon’s pleadings in this Court does not set forth a specific rule governing the release of lists of employee names. We find the situation much like the one described in Osborne v Bullitt County Board of Education, 415 SW2d 607 (Ky, 1967), and therefore dismiss charges (1), (2), (4), and (5) alleged by the city, each of which relate to Fannon’s use of the list. We do not intimate, in so dismissing, that the city may not, by civil service rule, promulgate an appropriate rule to protect the confidentiality of city records concerning its employees. The remaining charge, (3), related to Fannon’s refusal to obey a superior by refusing to answer questions concerning the release of the list of names. We recognize the validity of Gardner v Broderick, 392 US 273; 88 S Ct 1913; 20 L Ed 2d 1082 (1968), which was relied on by the Court of Appeals in resolving what it perceived as a self-incrimination question. We believe Gardner does not control this situation, however. In Gardner, during a grand jury investigation of alleged bribery and corruption by police officers, a police officer refused to sign a waiver and refused to testify in connection with the investigation. This case involved the release of a list of names for union organizing purposes. Michigan Employment Relations Commission Rule 423.445(2) is a recognition that a list of employee names and addresses is not so confidential that the city can forever bar it from union scrutiny. However, it is true that Rule 423.445(2) was not observed by Fannon and the union, and we cannot overrule the civil service commission’s finding of Fannon’s cul pability for failing to directly answer questions as to the release of the list. Accordingly, on consideration of plaintiff’s application for leave to appeal, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the decisions of the lower courts and remand to the Southfield Civil Service Commission so that body may reconsider Fannon’s punishment and determine. if necessary, any amount of back pay he is entitled to. Costs to appellant. Kavanagh, Williams, Levin, and Blair Moody, Jr., JJ., concurred. "Section 12.1 Tenure of Employment "The tenure of everyone holding office, place, position or employment in the City’s service shall be only during good behavior and efficient service, and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges for inefficiency, incompetency, insubordination, dishonesty, drunkenness, immoral conduct, discourteous treatment of the public, neglect of duty, violation of the provisions of the rules of the Civil Service Commission, of the City Charter, as amended, or any other act or omission detrimental to the good of the City service. The Civil Service Commission shall have the power to review all dismissals and all suspensions imposed.” These were the charges against Fannon: "(1) For your actions in compiling a list of names and addresses of city employees and passing this list on to a third party despite your knowledge that such information is of a confidential nature; (2) For your action in releasing information from city records without obtaining the prior approval of your supervisor which is required as a matter of operating procedure; (3) For your insubordinate actions in deliberately refusing to obey the order of Deputy City Administrator Robert X. Caldwell to answer his questions as to whether or not you had released a list of names and addresses of city employees to a third party without obtaining prior authorization; (4) For violating the trust placed in you by the city that you would handle confidential information in the course of your work and that you would protect the confidentiality of that information; and (5) For violating the trust placed in you by the city that you would conduct yourself in an honest manner and with integrity in your on-the-job contacts with individuals in positions of authority over you.” Rule 423.445(2): "At least 7 days prior to the date of an election, excluding Saturdays, Sundays, and legal holidays, the employer shall submit to the commission and other interested parties a list of the names and addresses of all eligible voters in alphabetical order. This requirement may be modified by mutual agreement of the parties, or by order of the commission, or its agent.” Decision and Findings of June 20, 1975: "(3) The Commission finds that Brian Fannon was indeed insubordinate as charged when he refused to answer relative [sic] questions ordered by Robert X. 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Levin, J. The issue is whether a circuit judge may exclude the public and members of the press from a criminal trial simply because the defendant requested it and the prosecutor did not object. We hold that a judge may not do so. Section 1420 of the Revised Judicature Act entitles the public to attend the sittings of every court. While this right is not absolute, we need not now decide what is sufficient cause to exclude the public and hold only that mere agreement of parties to a suit is insufficient. I An elementary school teacher was charged with criminal sexual conduct in the first and second degrees with one of her male students who was ten years old. At the time of trial the boy was twelve years old. At a pretrial hearing defendant’s lawyer made a motion to exclude all members of the press and public from the hearing and from the subsequent trial. The assistant prosecutor made no objection and the judge granted the motion. The defendant then waived her right to a jury trial. The same day the Detroit Free Press and the reporter it had assigned to the trial filed a complaint for superintending control with the Court of Appeals. The judge adjourned the trial pending the decision of the Court of Appeals. The Court of Appeals dismissed the complaint "for the reason that the constitutional right to 'a speedy and public trial by an impartial jury’ is a personal right of the accused, and, if waived, may not be invoked by a third party”. The Free Press filed a complaint for superintending control in this Court. We granted immediate consideration but denied the request for immediate relief. The trial thereupon resumed and the judge found the defendant not guilty. II The statute provides: "The sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security.” MCL 600.1420; MSA 27A.1420. The statute was not adverted to by the judge at the time of his decision to exclude the public and press. Nor did the Court of Appeals refer to it in its order. No reason was offered by defendant for closing the trial. The judge did not inquire whether there were any reasons justifying closure or offer any of his own. The prosecutor did not object to the motion, stating only "the defendant has a right to a public trial, it is within her discretion to waive that right”. We are thus confronted with a situation in which the legislative mandate that "[t]he sittings of every court within this state shall be public” was disregarded with no apparent justification. None of the statutory exceptions permits closing this trial; national security was not involved and excluding the public went beyond the authority to exclude witnesses or minors. The parties may not, by their mere agreement, empower a judge to exclude the public and press. When a motion for closure is made, the judge should, at a minimum, take testimony at a hearing open to all interested parties, explore the constitutional and statutory validity of any proffered justifications for excluding the public and press from any portion of the trial, and determine whether any alternative and less restrictive mechanisms exist. This was not done here and, hence, the closing of the trial was improper. Reversed. Coleman, C.J., and Kavanagh, Williams, Fitzgerald, and Ryan, JJ., concurred with Levin, J. Blair Moody, Jr., J. I agree with the result reached in this opinion. I disagree, however, with any implication that there may be sufficient cause to exclude the public under this statute, except in cases involving national security. MCL 600.1420; MSA 27A.1420. MCL 750.520b and 750.520c; MSA 28.788(2) and 28.788(3). "It is further ordered that the emergency application for superintending control be, and the same is hereby dismissed for the reason that the constitutional right to 'a speedy and public trial by an impartial jury’ is a personal right of the accused, and, if waived, may not be invoked by a third party.” "Mr. Trim: For the record, your Honor, Roger L. Trim, appearing on behalf of the defendant in this matter, * * *. Your Honor, at this point, we would like to ask the court to entertain a motion to exclude members of the public from this trial. We have consulted with our client and it’s her wish, and she is certain, her wish, that these proceedings be closed to the general public. [Defendant] has been totally informed, that of course, the right to a public trial is her right to assert, and knowing this, knowing that she has this constitutional guarantee, she has instructed us to request the court to entertain a motion to bar members of the public from this proceeding. "Mr. Dardy: I have no objection to that motion, your Honor. "The Court: That is the only position you have, you have no objection, you’re not quarreling with the law? "Mr. Dardy: I agree, that the law is, the defendant has a right to a public trial, it is within her discretion to waive that right. "The Court: Very well. Anyone not involved will remove themselves from the courtroom. "Mr. Trim: Thank you, your Honor. "The Court: The motion is granted. That includes everyone.” The statutory right of the public is subject to limitations imposed by the Due Process Clause guaranteeing a defendant in a criminal case a fair trial and by Const 1963, art 6, § 1, vesting the judicial power in one court of justice. There has been considerable litigation concerning the propriety of excluding the public from trials for reasons other than those stated in comparable statutes. See, e.g., Anno: Exclusion of Public During Criminal Trial, 48 ALR2d 1436; Anno: Right of Accused to Have Press or Other Media Representatives Excluded from Criminal Trial, 49 ALR3d 1007; Anno: Propriety of Exclusion of Press or Other Media Representatives from Civil Trial, 79 ALR3d 401; Fenner & Koley, The Rights of the Press and the Closed Court Criminal Proceeding, 57 Neb L Rev 442, 451 (1978).	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Kavanagh, J. (for reversal). Because the definition of "teacher” includes "all certificated persons”, MCL 38.71; MSA 15.1971, Bode, being such a person, is entitled to the protection of the teach ers’ tenure act upon satisfactory service of the probationary period. During his first two years of employment as a superintendent in Clintondale, he was subject to the provisions of MCL 38.81; MSA 15.1981, which read in pertinent part: "All teachers during the first 2 school years of employment shall be deemed to be in a period of probation.” The language in this section is mandatory ("shall”) and cannot be made ineffective by contract of the parties. Therefore, even though Bode labored under a contract denying him tenure in his superintendent position in Clintondale, that contract cannot be construed to deny service of the probationary period. The contract simply had no effect on service of probation. I do not share the view that it was illegal. Bode served two years in Clintondale without receiving notice that his work was unsatisfactory, MCL 38.83; MSA 15.1983, and thereby achieved continuing tenure in Clintondale. Upon his subsequent employment in Roseville, Bode needed to serve only one year of probation in order to attain tenure in that district. MCL 38.92; MSA 15.1992. His employment by Roseville under an oral contract as an administrative assistant from March, 1970 until July of that year, did not give him tenure as a superintendent. Nor did his employment as "acting superintendent” under the one-year contract from July, 1970 to June, 1971. Neither period of employment completed the probationary period in that classification. Such employment did, however, constitute the satisfactory completion of a one-year period of probation in Roseville entitling Bode to a tenure contract as a classroom teacher. For these reasons, I agree that Bode is entitled to tenure as a classroom teacher in Roseville. Levin and Blair Moody, Jr., JJ., concurred with Kavanagh, J. Williams, J. (for reversal). This case concerns the question whether one serving as a school superintendent can acquire tenure as a teacher. Since the teachers’ tenure act definition of "teacher” includes "superintendent” inter alia, service as a superintendent can qualify one for teacher tenure. We hold that plaintiff Bode’s service as superintendent was of such length and character as to qualify him for tenure as a teacher and the privileges thereof. The Court of Appeals is reversed. I. Facts Plaintiff Bode served in various school districts as a classroom teacher from 1950 to 1955 and as a principal from 1955 to 1958. During this time he was not eligible for tenure, because at that time there was no tenure unless the school system opted for it, and none of his school districts had. More significantly, after the tenure act became mandatory, plaintiff served as superintendent in Leslie from 1962 to 1966. He next served as superintendent in Clintondale from 1967 to 1970, when he resigned. Finally, after serving part of a year on a day-to-day basis in the Roseville School District, plaintiff was appointed as of July 1, 1970 as acting superintendent with a one-year contract. This was followed by a two-year contract as superintendent commencing July 1, 1971, but with a provision as follows: "4. The Superintendent of Schools shall not be deemed to be granted continuing tenure by virtue of this agreement.” On October 10, 1972, the school board assigned plaintiff to duties as acting superintendent. Plaintiff served as a special consultant until his employment contract expired. On or about February 7, 1973, Bode received notice he would not be employed after June 30, 1973. In October, 1972, plaintiff had petitioned the State Tenure Commission to find he had tenure as superintendent and that his reassignment as acting superintendent with duties as special consultant was improper. On June 11, 1973, the tenure commission held that the school board’s removal without notice and hearing was contrary to the tenure act, found that plaintiff had tenure as a superintendent, and ordered plaintiff restored as "Superintendent” but leaving to the school district his exact duties. The circuit court reversed the tenure commission. The Court of Appeals affirmed the reversal in an unpublished per curiam opinion. We granted leave to appeal, 399 Mich 898 (1977). II. Pertinent Tenure Act Provisions MCL 38.71; MSA 15.1971 provides: "The term 'teacher’ as used in this act shall include all certificated persons employed for a full school year by any board of education or controlling board of any public educational institution.” It is clear from this statutory language that a superintendent can be a teacher under the act. The tenure commission has so held: "We previously have held that article I, § 1 of the tenure act includes superintendent within the term teacher, Anderson v Westwood Community School District [State Tenure Commission, Docket No. 70-13].” MCL 38.81; MSA 15.1981 provides: "All teachers during the first 2 school years of employment shall be deemed to be in a period of probation.” (Emphasis added.) This provision is not limited to classroom teachers and would apply to any one defined as a "teacher” by the act. The following sections of the tenure act provide that a teacher completing the required years of probation has tenure unless notified otherwise by the controlling board. MCL 38.91; MSA 15.199Í states: "After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act.” MCL 38.83; MSA 15.1983 states: "At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing con tract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.” The act also places a limit on the number of years a teacher with tenure may be required to serve in another school district to fulfill the probation requirement. "If a teacher on continuing tenure is employed by another controlling board, he shall not be subject to another probationary period of more than 1 year.” MCL 38.92; MSA 15.1992. MCL 38.172; MSA 15.2054 prohibits a teacher from waiving any rights and privileges: "No teacher may waive any rights and privileges under this act in any contract or agreement made with a controlling board.” Under MCL 38.91; MSA 15.1991, a superintendent may waive tenure rights as a "superintendent”, but only after completion of tenure as a teacher. "If the controlling board shall provide in a contract of employment of any teacher employed other than as a classroom teacher, including but not limited to, a superintendent, assistant superintendent, principal, department head or director of curriculum, made with such teacher after the completion of the probationary period, that such teacher shall not be deemed to be granted continuing tenure in such capacity by virtue of such contract of employment, then such teacher shall not be granted tenure in such capacity, but shall be deemed to have been granted continuing tenure as an active classroom teacher in such school district. Upon the termination of any such contract of employment, if such controlling board shall not re-employ such teacher under contract in any such capacity, such teacher shall be continuously employed by such controlling board as an active classroom teacher.” (Emphasis added.) III. Application to Appellant Bode Bode has been in the field of education for 28 years, and a teacher under the act for 14 years. From 1950 to 1964, when the act became mandatory, he served in school districts which had not elected to come under its provisions. When the act became mandatory he was in the middle of a two-year contract at Leslie, Michigan. He was not reappointed in Leslie, and, because of the nature of the grandfather clause, did not qualify for tenure. Bode’s first position entirely under the act, after it became mandatory, was with the Clintondale School District from 1967-1970, as a superintendent. The rule is that at the end of the second year a teacher is deemed to have successfully completed probation and obtained tenure unless notified otherwise according to the provisions of MCL 38.83; MSA 15.1983 and MCL 38.81; MSA 15.1981. Bode was not notified that his work was unsatisfactory and should have obtained tenure. But it is claimed that Bode’s contract with the Clintondale School District containing a provision excluding tenure precluded obtaining tenure. However, the tenure act provides that a contractual waiver by a teacher in an administrative position can only be "made with such teacher after the completion of the probationary period”. MCL 38.91; MSA 15.1991. Since Bode had never achieved tenure, the waiver was illegal and of no force and effect. Consequently, plaintiff obtained tenure as a classroom teacher after his first two years of service without notification his work was unsatisfactory. Therefore, we agree with the tenure commission that "while Bode did not gain tenure as a superintendent during his employment with the Clintondale School District, he did gain tenure in position as a teacher having served for the statutory two years probationary period; * * *.” When Bode moved to Roseville, his service as acting superintendent for one year satisfied the requirement of a probationary period. MCL 38.92; MSA 15.1992. He was not notified that his work was unsatisfactory, MCL 38.83; MSA 15.1983, and therefore received tenure as a teacher. The tenure commission, however, held that Bode received tenure as a superintendent while in the position of acting superintendent. We disagree. Plaintiff could not acquire service toward tenure as a superintendent, because the resolution appointing him as acting superintendent clearly indicated that the board considered the superintendent’s position still under search. Bode had tenure when he began the contract for superintendent effective July 1, 1971. He waived his right to tenure in the administrative capacity but not as a classroom teacher. IV. Conclusion We find first that a teacher serving as a superintendent can acquire tenure as a teacher; second, that Bode completed a two-year probationary period in the Clintondale School District and acquired tenure as a teacher, since he received no notice that his work was unsatisfactory and since the waiver proviso he worked under could not apply until after he received tenure; third, that Bode completed a one-year probationary period with the Roseville School District and received tenure there as a teacher. We reverse the Court of Appeals. The teachers’ tenure act did not become mandatory until 1964, "This act shall apply to all school districts of the state.” MCL 38.151; MSA 15.2051, as amended by 1964 PA 2, § 1. "Provided, That any teacher under contract at the time this act becomes effective who has previously rendered 2 or more years of service in the same school district shall be granted continuing tenure immediately upon reappointment by the controlling board: Any such controlling board by unanimous vote of its members, however, may refuse to appoint a teacher who has rendered 2 or more years service in the school district under its control. In the event the vote against reappointment of such teacher is not unanimous the controlling board shall deem such teacher as on continuing tenure with full right to hearing and appeal as provided in article 4 and article 6 of this act: Provided further, That the controlling board, after this act becomes effective, may place on continuing tenure any teacher who has previously rendered 2 or more years of service.” MCL 38.81; MSA 15.1981.	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Per Curiam. On November 4, 1977, the State Bar Grievance Board affirmed and adopted the findings, conclusions, and order of Ingham County Hearing Panel No. 2 filed August 5, 1977. The hearing panel had found the respondent Robert A. McWhorter guilty of misconduct in his dealings with funds belonging to a client and her minor children. The order suspended respondent from practice for a period of 121 days. The respondent has appealed, contending that the record does not justify his suspension. I The respondent represented Bonnie Beach and her minor children in connection with an automobile accident. A settlement was reached with the adverse party as a result of which $9,350, less the respondent’s fee, was awarded to the children. The judgment provided that Ms. Beach would hold the money as next friend for the children until ap pointment of a general guardian. Ms. Beach entered into an oral agreement with Mr. McWhorter under which he was to retain the funds for the purposes of investment to assure that when the children reached age 18 they would receive a good return on the money. Ms. Beach became dissatisfied with the respondent’s ability to document the existence and whereabouts of the money. She filed a request for investigation with the State Bar Grievance Board on August 18, 1975. After receiving notice of the board’s investigation, the respondent returned an amount of money to Ms. Beach in October of 1975 that was approximately 50% greater than the amount he originally agreed to invest. It appears that the respondent replaced this money with his own funds. On December 21, 1975, Ms. Beach signed an affidavit requesting that the board not proceed further with its investigation. She persisted in that request in her testimony before the hearing panel on June 13, 1977. The hearing panel’s findings with regard to the charged misconduct were as follows: "3. That the said hearing panel * * * finds that the respondent did not handle the trust funds with honesty, fidelity and good faith and that as an attorney he should have known that the funds referred to in said paragraph should have been placed either with a guardian or other fiduciary appointed by a proper court and thereafter handled fully in accord with statutes pertaining to the investment of minors’ funds. "4. The panel further finds that proper books of account and records concerning the administration of the trust funds were not kept by the respondent. "5. That the respondent failed to disclose or to account to Bonnie Beach any information concerning the investments, the location, or the administration thereof, and that he failed to preserve the identity of the separate trust funds for the children of Mrs. Beach. "6. That the respondent breached the duties which he had as a trustee of the Beach funds in that he failed to preserve the identity of the separate trust funds under his control, and further failed to maintain complete records of trust funds in his possession for the benefit of Bonnie Beach and for the benefit of the minor children. Further, that he failed to render accountings concerning the trust funds although requested by the said Bonnie Beach.” The panel concluded that these actions constituted violations of Code of Professional Responsibility, DR 1-102(A)(6) and DR 9-102(B), subds (2), (3), and (4). II The respondent contends that DR 9-102(B)(2) is inapplicable because there was no specific property which he should have stored in a place of safekeeping. He argues that DR 9-102(B)(4) was not. violated because his client never asked him to pay over the funds. The respondent maintains that the agreement that he had with Ms. Beach did not require him to keep records or give accountings of the funds involved. Thus, he believes that DR 9- 102(B)(3) is not applicable. Finally, he argues that the record does not reveal conduct on his part adversely reflecting on his fitness to practice law because his conduct was appropriate given the agreement with his client and the relationship between them. He points to his payment of an appropriate amount to his client and her apparent satisfaction, as evidenced by her request that the grievance proceeding be discontinued and his continued representation of her in other legal matters. Ill We do not reach the question of whether the evidence supports the findings of misconduct by the respondent. We regard the request by the aggrieved client for discontinuance of the proceedings as dispositive. There are situations in which the withdrawal of a request for investigation need not be honored by the board. Cf. State Bar Grievance Administrator v Jackson, 390 Mich 147, 152; 211 NW2d 38 (1973). In the circumstances of this case, however, we believe that the withdrawal request should have been honored. The withdrawal came early in the investigation. The respondent’s conduct was not of the egregious kind that requires continued proceedings for the protection of the public even in the absence of a continued interest by the aggrieved party. Finally, the client’s withdrawal of the request for investigation several months after the return of the money, her persistence in her desire to stop the proceedings 18 months later at the hearing, and her continued attorney-client relationship with respondent lead us to conclude that the board should have discontinued its investigation. Accordingly, we reverse the order of the State Bar Grievance Board and dismiss the complaint against the respondent. Kavanagh, Williams, Levin, and Fitzgerald, JJ., concurred. "A lawyer shall not * * * [ejngage in any other conduct that adversely reflects on his fitness to practice law.” "(B) A lawyer shall: "(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon a practicable. "(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them. 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Williams, J. The sole issue on which this Court granted leave to appeal is whether a voluntary dismissal with prejudice of a prior suit which failed to state a cause of action under state law precludes, under the doctrine of res judicata and/ or GCR 1963, 203.1, a plaintiff from bringing a second suit based on an alleged violation of the Federal Truth-in-Lending Act. We find that plaintiff is not so precluded. I. Facts In 1972, plaintiff deeded her home to Louis Tibolla as security in connection with an agree ment by Tibolla to repair plaintiffs home after a fire. The conveyance itself was intended as a down payment of $5,500 on the total cost of repairs said to be $17,100. The balance of the amount due for the repairs was to be paid by plaintiff under a land contract to repurchase. The land contract had a clause authorizing Tibplla to mortgage the premises. In September, 1972, Tibolla granted a mortgage to defendant Colonial Federal Savings and Loan Association of Grosse Pointe Woods (hereinafter Colonial), gave a personal note as well as a security interest in the property, and received from Colonial $15,000. Later in 1972 plaintiff filed her initial lawsuit against Tibolla alleging that he had breached his contract of repair, committed fraud, used secondhand materials, made shoddy repairs and failéd to apply half the proceeds of the land contract to pay off the mortgage. By amended complaint, plaintiff joined Colonial as a party and sought rescission of the mortgage , between Tibolla and Colonial. Colonial denied that it was a party to any wrongful conduct and, at pretrial conference, January 8, 1975, plaintiffs attorney in the first case agreed to a dismissal of Colonial with prejudice. At the same time a default judgment was entered against Tibolla for the full amount of plaintiffs claim, $17,100, together with costs, interest and attorney’s fees. Nine days later plaintiff filed the instant suit against Colonial, seeking rescission of the mortgage based on a claim that violation of the Federal Truth-in-Lending Act, 15 USC 1635, gave plaintiff a right to rescission. Colonial moved for and received an accelerated judgment on the basis of res judicata and election of remedies. Appeal was taken by plaintiff to the Court of Appeals which affirmed by memorandum opinion of June 22, 1976. Plaintiff filed an application for leave to appeal to this Court and leave was granted March 7, 1977. II. Res Judicata Res judicata is a manifestation of the recognition that endless litigation leads to vexation, confusion and chaos for the litigants, and inefficient use of judicial time. See generally 46 Am Jur 2d, Judgments, § 395, p 559. The scope of res judicata has been framed in this jurisdiction in two distinct manners, one of which is literal and narrow and the other of which is broad. The former literal statement of the rule appears in the case of Clements v Constantine, 344 Mich 446; 73 NW2d 889 (1955). In that case the scope of the doctrine was set forth as follows: " 'The first essential of the rule of res judicata is the identity of the matter in issue. The "matter in issue” is defined to be "that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings.” See Chand, Res Judicata, p 35. If the same subject matter comes in question in. a second action in a court of last resort, it is bound by its own former decision. Bigelow on Estoppel (1st ed), p 16. " ' "A matter or question, either of law or fact, is res judicata, or set at rest, as to adverse parties and their respective privies, if it was a material issue in the proceeding, directly involved, and not merely incidentally cognizable nor collaterally in question, and was adjudicated after a contest, by a final judgment on the merits1 Van Fleet, Res Judicata, p 2.’” Clements, supra, 453-454. (Emphasis added.) Literally res judicata means "[a] matter adjudged” and is further defined by Black’s Law Dictionary (4th ed) as a "[rjule that final judgment or decree on merits * * * is conclusive of rights of parties or their privies in all later suits on points and matters determined in former suit” (emphasis added). What clearly stands out in these definitions is that issues not litigated in a former suit are not res judicata. However, the rule has also been framed more broadly. An example of this more inclusive statement of the doctrine can be found in three cases which deal with the res judicata of prior consent judgments, Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965); Shank v Castle, 357 Mich 290, 295; 98 NW2d 579 (1959); Prawdzik v Heidema Brothers, Inc, 352 Mich 102; 89 NW2d 523 (1958). In Gursten the rule was stated in dicta as follows, " ' "The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” ’ ” Gursten, p 335. (Emphasis added.) Whatever the correct scope of the rule, its main purpose is to insure finality in a cause of action. Plaintiff asserts that the cause of action she presently sues upon is different, separate and distinct from that in the prior suit, thereby precluding application of res judicata, and even if this were not the case, her second suit is saved by virtue of the waiver provision of GCR 203.1. Because we find this case controlled by GCR 203.1, and because there was no objection as discussed in the last sentence of that rule, we need not decide whether plaintiff’s second suit should have been part of her first suit under Michigan’s rather broad definition of "cause of action”, or the broad definition of res judicata. GCR 203.1 reads as follows: "A complaint shall state as a claim every claim either legal or equitable which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Failure by motion or at the pretrial conference to object to improper joinder of claims or to a failure to join claims required to be joined constitutes a waiver of the required joinder rules and the judgment shall not merge more than the claims actually litigated.” (Emphasis added.) The first sentence of the above court rule codifies Michigan’s longstanding decisional rule against splitting a cause of action. That decisional rule is grounded on the same general policy considerations as the doctrine of res judicata and, to the extent the rule encompasses or mitigates res judicata, it must control. III. GCR 203.1 In examining the instant case under GCR 203.1, the matter which must be decided by this Court is the impact, if any, of the waiver provision found in the second sentence of the rule. A Court of Ap peals opinion which previously considered the rule is instructive. In Malesev v Garavaglia, 12 Mich App 282; 162 NW2d 844 (1968), Justice Thomas Giles Kavanagh, then Presiding Judge of the Court of Appeals, was faced with a case similar to the instant one. Plaintiffs had initially brought a tort action to recover property damage suffered during defendants’ construction of a drain water intake system pursuant to a contract with the Wayne County Board of Road Commissioners. Defendants were awarded an accelerated judgment based on plaintiffs’ failure to comply with the three-year statute of limitations governing personal injury or property damage claims. Less than two months later the plaintiffs brought a second, separate action against the same defendants claiming they were third-party beneficiaries under the contract between the road commission and defendants and that defendants had breached that contract. Unlike their initial suit, plaintiffs’ second suit sounding in contract was subject to a six-year rather than three-year statute of limitations. Defendants were granted an accelerated judgment in the second suit based on res judicafa, On appeal, then Presiding Judge Kavanagh correctly found the application of res judicata to be erroneous, given the circumstance that plaintiffs had not received an adjudication on the merits of any portion of their claim. Further, in light of GCR 203.1, he found that plaintiffs’ second suit was not barred despite the fact that they should properly have joined a separate claim for breach of contract in conjunction with the original suit. This was so because "defendant made no objection at that time for failure to join all actions, consequently nothing bars the bringing of [plaintiffs’] separate action now. (GCR 1963, 203.1)”. Malesev, supra, 285. See also Roberts v Duddles, 47 Mich App 601, 604; 209 NW2d 720 (1973). We find that the rule was interpreted and applied in the only logical manner by then Presiding Judge Kavanagh in Malesev. As quoted above, the language of the rule specifically states that "failure * * * to object * * * to a failure to join claims required to be joined constitutes a waiver of the required joinder rules”. This language is clear. Its obvious impact is that waiver by the defendant precludes later assertion of the waived defense during a subsequent suit. While at first glance the court rule’s waiver provision may appear to create a vast change in this area of law, we note that further reflection persuades us otherwise. The defenses of merger and bar have always been waivable by a defendant. The only innovative aspect of the rule’s waiver provision is that a defendant must now assert his or her objection during the first suit when there exists an opportunity for plaintiff to cure the nonjoinder defect. In substance, the harshness of the prior rule is merely mitigated by the new requirement of timely motion. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes, Rule 203, p 472 and Authors’ Comments, pp 474-475 to Rule 203. IV. "Merger”/”Bar” and GCR 203.1 Justice Ryan’s opinion, in its interpretation of the instant case, would limit the scope of GCR 203.1 to cases falling within the technical limits of "merger”, on the ground that the rule makes specific reference to "merger” without similar specific reference to "bar”. Under such an interpretation, if a plaintiff had won a prior suit during which a defendant had failed to object to plaintiff’s nonjoinder, GCR 203.1 would operate to allow the maintenance of a second suit because the defense of "merger” would have been waived. If a plaintiff had lost the prior suit, as occurred herein, however, under Justice Ryan’s interpretation GCR 203.1 would be inapplicable despite a defendant’s similar failure to object. This inconsistent result would obtain because a defendant could waive assertion of the defense of "merger” but could not waive assertion of the defense of "bar” under his reading of the rule, although in fact both actions were almost identical. We cannot agree that the rule can be interpreted in this manner for a number of reasons. First, Justice Ryan’s interpretation would mean that Malesev, which we believe correctly interpreted and applied GCR 203.1, was incorrectly decided. In Malesev, the plaintiff was unsuccessful in his first suit, but then Judge Kavanagh found that plaintiff could maintain a second suit because the waiver provision of GCR 203.1 precluded defendant’s assertion of bar. Second, we note that the concepts of merger and bar are almost identical despite their technical distinction. In fact the terms "merger” and "bar” are often used interchangeably to convey the same meaning. In specific reference to the waiver provision of GCR 203.1, an example of this interchangeability in common usage can be found in Wayne Circuit Judge Horace W. Gilmore’s oft-cited treatise, Michigan Civil Procedure Before Trial. The treatise states in § 8.103, "failure * * * to object to * * * failure to join claims required to be joined, constitutes a waiver of the required joinder, and the judgment does not merge more than the claims actually litigated.” (Emphasis added.) In the very next section, § 8.104, the treatise states, "[a]s pointed out in the previous section, §8.103, failure to object to the nonjoinder of mandatory claims means that the action does not bar a subsequent suit on that unjoined claim.” (Emphasis added.) The fact that the terms are frequently not distinguished in common usage is further demonstrated by the fact that this limited interpretation of the waiver provision solely to those cases falling within the technical definition of merger has not arisen in prior Court of Appeals cases examining GCR 203.1. Third, even if merger is given its technical meaning, we do not find the language discussing merger to control that which precedes it. The second sentence of GCR 203.1 contains two clauses. The first states, "failure * * * to object * * * constitutes a waiver of the required joinder rules”. This clause unequivocally waives all joinders, whether plaintiff won or lost. So the technical difference between "merger” and "bar” does not come into play at all. We hold this clause is absolute and controlling. The second clause states "* * * and the judgment shall not merge more than the claims actually litigated”. We find the language in the second clause subordinate to the language contained in the first clause and hold that the term "merge” in the second clause is used in its more general sense. Waiver of the joinder rules necessarily includes waiver of the defense of "bar”. This reasoning is substantiated by the Committee Notes discussing the "harshness” the waiver provision is meant to mitigate: "[t]he harshness of the present practice as it relates to the enforcement of compulsory joinder provisions * * * is the fact it almost always is enforced after the fact, through the doctrine of merger and res judicata” (emphasis added). Res judicata includes both the doctrines of merger and bar. James, Civil Procedure (Little, Brown & Company, 1965), p 549. Further, and perhaps of greatest significance, to apply the GCR 203.1 waiver provision solely to merger and not to bar does not make sense in light of a primary purpose of the waiver provision. That purpose is to encourage a defendant to assert, by motion, an objection to plaintiff’s nonjoinder in the first suit when the defect can be cured. At this point it could not be known whether plaintiff would win or lose. The introduction of fairness and certainty into this area of litigation is the obvious beneficial impact intended by the rule in requiring assertion in the first suit. For example, if a plaintiff initially fails to join all claims and there is no objection made by defendant to this defect, then all parties are on express notice that plaintiff may later institute suit on matters not actually litigated therein. Conversely, if plaintiff fails to join all claims and defendant does object, all parties know that plaintiff will be precluded from suing again absent an amendment in plaintiff’s complaint joining those additional claims. Hence, as stated in the Committee Notes and Authors’ Comments, the unfairness or harshness of the joinder rule is mitigated by bringing the matter to the fore in the original suit when the nonjoinder defect can be cured. Clearly, if the waiver provision were solely applied to cases which, once litigated, come within the technical definition of "merger”, there could be no certainty until plaintiff’s success was determined; that very certainty sought to be realized by the rule during the original suit would be frustrated. We cannot and do not find that this rule drafted to effectuate fairness and certainty during an original action, can be interpreted to render the matter uncertain until after finality of the original action. Finally, the unreasonableness of interpreting the waiver provision as restricted only to cases falling within the technical definition of "merger” is further supported by the fact that we cannot logically find that the provision was intended to avoid harshness only with respect to the successful plaintiff. If a choice had been undertaken by the rule — and we do not find that one was — it would appear to us far more logical to assist the plaintiff suffering most significantly by the harshness of the traditional compulsory joinder requirement, i.e., the plaintiff who has been unsuccessful and therefore recovered nothing from the defendant as a result of the original suit. For the above reasons we cannot conclude that the GCR 203.1 waiver provision applies only to cases falling within the technical scope of merger and therefore only in favor of previously successful plaintiffs. We find the waiver provision to mean what it says — a defendant who fails to object to a plaintiffs nonjoinder waives the use of the defense in a subsequent suit based on additional claims. V. Conclusion Consistent with the purpose and language of the rule, we find that defendant has waived the right to preclude the instant suit as a result of its failure to make timely objection in the original suit. Accordingly, we reverse and remand for trial on plaintiffs Federal Truth-in-Lending claim. Costs to appellant. Levin and Blair Moody, Jr., JJ., concurred with Williams, J. The Federal statute affords a right to rescind security transactions involving real estate and places an affirmative duty to disclose on the creditor. The act reads in part: "Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest ** * * is * * * retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.” Factually, the matter attempted to be raised in the second trial in Gursten had been raised and pursued by the litigants in the first trial so the consent judgment would have been res judicata under either the narrow or broad statement of the rule, and the holding of the case was that plaintiff "elected to pursue the matter before the referee in bankruptcy [in the first case]. Having made that choice, he was under obligation to pursue it [by appeal] or abide by an adverse result”, Gursten, p 335. Despite this, the Court attempted to deal with the inconsistency of the two above statements of the rule by distinguishing three older cases which had employed the narrower doctrine of res judicata (Detroit Trust Co v Furbeck, 324 Mich 401; 37 NW2d 151 [1949]; Meister v Dillon, 324 Mich 389; 37 NW2d 146 [1949]; MacKenzie v Union Guardian Trust Co, 262 Mich 563; 247 NW 914 [1933]). The Gursten opinion distinguished the three older cases by finding that the matters raised in the second suits in those cases did not properly belong in the original suits or did not have to be raised at the time of the original suits and went on to find the broader rule preferred. See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Authors’ Comments, Rule 203, p 474, citing the Committee Comments to that Rule 203.1 and 1 Michigan Law & Practice, Action §§ 22-25, pp 132-140. GCR 203.1 has no impact on the narrow rule of res judicata, i.e., matters actually litigated. See 1 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 203, Authors’ Comments, p 476 in which it is stated "* * * sub-rule 203.1 modifies * * * res judicata, by providing that omitted claims relating to the original cause of action may be asserted later, if there was no objection to the failure to join them in the first action. "The rule has no effect, however, on the application of res judicata to the claims actually litigated in the original action.” (Emphasis added.) Of additional interest is the fact that, as stated in the Committee Notes to the rule, it is meant to have no impact on the doctrine of collateral estoppel. 1 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 203, Committee Notes, p 473. An accelerated judgment based on the three-year statute of limitations is not an adjudication on the merits of a cause of action. See Nordman v Earle Equipment Co, 352 Mich 342; 89 NW2d 594 (1958). In Purification Systems, Inc v The Mastan Co, Inc, 40 Mich App 308; 198 NW2d 807 (1972), another panel of the Court of Appeals discussed the waiver provision of GCR 203.1. The Court of Appeals affirmed a trial court’s holding based on res judicata because it found that the facts to be proven in a second suit were the same as those litigated in the first. That court went on to discuss GCR 203.1 and noted that defendant had not made an objection under the rule. In apparent dicta, the panel adopted a balancing approach to application of the rule. We disagree with the Court of Appeals findings in Purification Systems as to both res judicata and GCR 203.1, and that case is hereby overruled. See criticism of the case in 57 Mich St Bar J 842-843 (Oct, 1978). Colonial argues in this Court that, "[t]he proper interpretation of GCR 1963, 203.1 is that claims omitted from the original suit may be asserted later if there was no objection to the failure to join them in the first action and if they do not arise out of the same transaction or occurrence involved in the first action” (emphasis in original). The plain language of GCR 203.1 requires joinder of "every claim * * * if n arises out of the transaction or occurrence that is the subject-matter of the action” (emphasis added). In other words, it is a compulsory joinder provision for claims arising out of the same transaction. The second sentence containing the waiver provision requires objection to failure to join that which should be joined under the rule, i.e., matters arising out of the same transaction or occurrence. Colonial’s contention is contrary to the very language of the rule. Technically, merger occurs only when a prior judgment has been rendered in favor of a plaintiff; plaintiff's cause of action is merged if he or she wins. Bar, on the other hand, technically occurs when the plaintiff has been unsuccessful in the prior action; plaintiff’s cause of action is barred if he or she lost. Under either doctrine, of course, plaintiff could not maintain a second suit based on the same cause of action. This is not to say that it is incorrect to usually interpret language employed in a statute or court rule under its technical meaning. Within the context of GCR 203.1, we find such a restrictive reading to be inappropriate. This common interchangeable usage is further demonstrated by the fact that following the above quotation in the Gilmore Treatise, a hypothetical factual situation is inserted to illustrate the impact of the waiver provision as it would affect two separate suits. The hypothetical does not indicate whether plaintiff was successful or unsuccessful in the first suit, but does indicate that the second suit is authorized because of defendant’s failure to object during the first suit. While litigants normally assert any plausible (and some not so plausible) arguments beneficial to their case, this limited interpretation has also not been raised by the parties herein. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes, Rule 203, p 472, states, "Sub-rule 203.1 deals only with compulsory joinder of claims between those already parties to the action. "The strictness of the compulsory joinder provision of sub-rule 203.1 and its all inclusive character is mitigated in a sensible way by its last sentence and by the provisions of Rule 301 requiring the pre-trial conference judge to inquire as to whether or not all claims required to be joined are joined. The harshness of the present practice as it relates to the enforcement of compulsory joinder provisions (this is sometimes referred to as the rule against splitting causes of actions) is the fact it almost always is enforced after the fact, through the doctrine of merger or res judicata. In other words, at the present time the question of whether or not all of a cause of action has been sued upon is seldom, if ever, challenged in the original suit when the defect might have been corrected. Normally, the challenge comes in a response to another suit alleging splitting or merger. At this late stage of the proceedings, no matter how innocent the parties were, there is no way to correct the matter and the party loses his chance to litigate the rest of his claim." (Emphasis added.) The Authors’ Comments at p 475 states, "An unfortunate aspect of the rule against splitting a cause of action was that it was almost always enforced after the fact. The question of whether all required matters had been joined was seldom raised in connection with the first action, when something could have been done about it. Rather, it was raised as a defense of res judicata to a second action attempting to present the related but previously unlitigated matters, and the penalty was that matters which should have been joined before were now forever lost.” The defendant, aware that all claims had not been joined (whether the failure to join by plaintiff was intentional, or more likely a result of ignorance or mistake as probably occurred in the instant case) would be encouraged to engage in guesswork as to the likelihood of plaintiffs success on the limited points raised in the first suit, rather than being encouraged to make the objection as soon as he or she was aware of plaintiffs nonjoinder.	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Coleman, C.J. (to affirm). The defendant appeals his conviction of first-degree murder. The question presented is whether voluntary statements made by the defendant to a detective and an assistant prosecuting attorney after knowingly and understandingly waiving his right to an attorney and his right to remain silent must nonetheless be suppressed if the assistant prosecuting attorney violated Disciplinary Rule 7-104(A)(l) of the legal profession’s Code of Professional Responsibility, which states: "During the course of his representation of a client a lawyer shall not: "(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law tp do so.” The Court of Appeals ruled, one judge dissenting, that an ethics violation alone does not warrant or require the suppression of voluntary statements. 74 Mich App 351; 253 NW2d 763 (1977). We affirm. I On October 19, 1974 at approximately 8:30 p.m., the victim left her home and drove to a nearby market to purchase some milk. She took her six-month-old child with her. Patrons of the market and a cashier saw her in the market with her child just before closing at approximately 8:45 p.m. Her husband awoke from a nap at approximately 11:45 p.m. and became worried when he discovered that she was not yet home. He telephoned a relative and together they began looking for her. At approximately 12:30 a.m., they found her car in the market parking lot with the keys in it and the child asleep on the front seat. After a futile search of the surrounding area, they drove the car home and telephoned the police. The victim’s whereabouts remained unknown until the late afternoon of October 21 when some hunters found her body floating in a nearby river. An autopsy performed the next day revealed that she had been stabbed once in the back and once in the chest. The chest wound was near the sternum. It penetrated through some soft tissue between the fourth and fifth ribs and continued through the front and back walls of the victim’s heart. The back wound penetrated through both walls of the victim’s left lung. The cause of death was shock and hemorrhaging. On October 23 a citizen spoke to the police and implicated the defendant in the murder. A police officer visited the man at his home and, while the officer listened on an extension, the man telephoned the defendant and expressed concern about the possibility of fingerprints or other incriminating evidence. The defendant said not to worry about these things. On October 24 the police arrested the defendant and booked him for murder. The detective in charge of the case then drove the defendant to the area where the victim’s body had been found and advised the defendant of his Miranda rights by reading from a card that said: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering these questions. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions if you wish one. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” On the back of the card were these questions: "Do you understand each of these rights I have explained to you? Do you want to talk to a lawyer before any questions? Will you waive your right to remain silent and answer any questions we may ask you?” The defendant indicated that he understood his rights and would waive them. He then denied having any knowledge of the murder. On October 28 the defendant sent a message to the detective asking to speak with him. The defendant complained that the guards at the jail were harassing him. That afternoon the detective visited the defendant at the jail. After hearing his Miranda rights and again waiving them, the defendant proffered a statement concerning his supposed whereabouts on the night of the crime and again denied having any knowledge of the murder. At the end of this discussion the detective asked the defendant if he was telling the truth and the defendant said that he was. On October 31 counsel was appointed to represent the defendant. On November 19 the man who originally implicated the defendant in the murder testified against the defendant at the preliminary examination. He had been the defendant’s homosexual lover until the day of the arrest. According to this witness, the defendant arrived at the home of a mutual acquaintance between 9 p.m. and 10 p.m. on October 19, 1974. At approximately 11 p.m. they all decided to go to a party in Detroit. As they entered the defendant’s car, the defendant asked the acquaintance to hand him the coat lying on the back seat because "there’s something in there that probably would be dangerous to him”. After they returned from Detroit, the acquaintance was taken home. The defendant then said that he had something to tell the witness and that the witness could not tell anyone else about it. The defendant reached underneath the front seat of his car, pulled out a large knife and said that he "had just killed his old lady”. When the witness expressed disbelief, the defendant said, "I’m serious” and proceeded to detail the circumstances of the crime. He said he stabbed her in the chest and "it went in easy”. (To illustrate the location of the wound, he put the point of the knife on the chest of the witness near the witness’s sternum.) He also said he left her keys and her sleeping child in her car and had dumped her body in the water near the area where the body eventually was found. When the witness continued to express disbelief, the defendant pointed to what he said was a bloodstain on the knife. Shortly after this conversation, at approximately 4 a.m. on October 20, the defendant and the witness entered another car with some friends who were taking one of the passengers home. On the way to that residence, the defendant asked the driver to take a slight detour. The detour led past the market where the victim’s car had been found. The defendant said that he wanted to "check out something”. As they drove past the market, the defendant said, "It’s gone.” Primarily on the basis of this testimony, the defendant was bound over for trial on an open charge of murder. Sometime during the middle of November, the defendant again sent word to the detective, asking to speak with him. The detective and the assistant prosecuting attorney assigned to the case visited the defendant at the jail. However, when the detective advised the defendant of his Miranda rights, the defendant indicated that he wanted to speak with his attorney before talking further about the case. The discussion ceased immediately at that point. Near the end of January, 1975, the defendant again sent word to the authorities expressing a desire to talk. On January 29 the detective and the assistant prosecuting attorney spoke with each other and then visited the defendant at the jail. They did not communicate with the defendant’s attorney. The detective advised the defendant of his Miranda rights. The defendant waived his rights and said that he wanted to talk to the authorities without his attorney present. The detective asked about the murder and the defendant proceeded to tell an exculpatory story about driving to a store on the night of the crime to purchase some wine and meeting a man who revealed a large knife and said something about "killing this bitch”. The defendant said he gave this man a ride to a bar and later discovered that the man had managed to slip the knife underneath the defendant’s coat in the back seat of the defendant’s car. The defendant said he threw the knife in some bushes next to a restaurant parking lot in Detroit. He refused to identify the man. At the end of this story, the assistant prosecuting attorney, who, up to that point, had only been taking notes, asked the defendant if he was telling the whole truth. The defendant said that he was. Prior to trial an evidentiary hearing was held to determine the admissibility of the defendant’s statements. After testimony was taken, defense counsel objected to the admission of the January 29 statements on the ground that the defendant had not been advised prior to making the statements that the penalty for first-degree murder was mandatory life. In passing, defense counsel added: "I just think for an assistant prosecuting attorney and Detective Blum to interrogate Ernest Green and not advise him of that or even volunteer to invite me to the jail, I don’t think that the admissions made on January 29, 1975 should be admissible.” The trial judge overruled the objection and the statements were ultimately admitted into evidence at trial. The jury convicted the defendant of first-degree premeditated murder. II On appeal the defendant has not argued that his statements were involuntary or that the authorities failed to comply with the Miranda requirements. Instead he contends that the statements should have been suppressed because the assistant prosecuting attorney violated DR 7-104(A)(l). Alternatively he contends that the statements should have been suppressed because the assistant prosecuting attorney’s conduct was so fundamentally unfair and shocking to the sensibilities of reasonable persons that it violated general notions of due process of law. The state responds that there was no violation of DR 7-104(A)(l) in this case because the defendant initiated the January 29 discussion, waived his right to counsel and indicated that he wanted to •talk to the authorities without his attorney present. Further, the state argues that the assistant prosecuting attorney played only a minor role in the discussion, listening to the defendant and taking notes, and that there was no overreaching of any kind. Alternatively the state contends that the exclusionary rule does not apply to violations of the Code of Professional Responsibility. The proper action is disciplinary proceedings against the offending attorney. Finally, the state argues that if the admission of the defendant’s statements at trial was error, it was harmless. Ill The threshold question is whether the assistant prosecuting attorney violated DR 7-104(A)(l). The Court of Appeals unanimously concluded that the assistant prosecuting attorney had acted improperly. The state has conceded in its brief that prosecuting attorneys are not exempt from the strictures of DR 7-104(A)(l). The state argues, however, that no violation of DR 7-104(A)(l) occurred in this case because of the defendant’s intention to speak with the authorities without his attorney present and because of the lack of overreaching by the assistant. prosecuting attorney. The argument that the defendant’s request to speak out of the presence of his attorney obviates the necessity of notifying the defendant’s attorney and obtaining his or her consent is contrary to opinions by both the American Bar Association and Michigan State Bar Association Committees on Professional Ethics. In ABA Formal Opinion 108 issued in 1934, the Committee was asked to interpret the forerunner of DR 7-104(A)(l), old Canon 9, which stated: "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.” The question before the committee was whether the plaintiffs attorney in a civil case could ethically interview the defendant in the absence of the defendant’s attorney if the defendant was willing to discuss the case. The committee unanimously answered in the negative and, after quoting Canon 9, stated: "The reasons for such a prohibition are equally clear. They arise out of the nature of the relation of attorney and client and are equally imperative in the right and interest of the adverse party and of his attorney. To preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches the Canon is wise and beneficent and\ should be obeyed.” In Michigan State Bar Opinion 202, issued in 1965 and approved by the State Bar Board of Commissioners in 1966, the committee was faced with the question whether Canon 9 prohibited a prosecuting attorney from interviewing a criminal defendant without first obtaining the consent of the defendant’s attorney even if the defendant requested the interview without informing his or her attorney. The committee unanimously answered in the negative. The quotation from ABA Formal Opinion 108 set forth above indicates that there is more to this ethical prohibition than just the prevention of overreaching. The rights and interests of the adverse party’s attorney and the proper functioning of the legal system are involved as well. Ethical Consideration 7-18, adopted by the American Bar Association in 1975, emphasizes the importance of this ethical prohibition to the functioning of the legal system: "The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.” (Footnote omitted.) Other authorities have not exempted prosecuting attorneys from the strictures of DR 7-104(A)(l) in fact situations where the defendant requested an interview or was willing to speak and where there was no overreaching. The language of DR 7-104(A)(l) is clear and contains only two exceptions. It says "a lawyer shall not * * * communicate * * * with a party he knows to be represented by a lawyer * * * unless he has the prior consent of the lawyer representing [that] party or is authorized by law to do so”. (Emphasis added.) The state has not presented any reasons for a distinction between civil and criminal cases based on the defendant’s willingness to speak and the lack of overreaching. Nor has the state addressed the concerns in addition to the prevention of overreaching expressed in the ethics opinions noted above. We hold that while this defendant’s initiative and willingness to speak and the lack of overreaching by the assistant prosecuting attorney are factors to be considered in mitigation, they do not excuse compliance with the standard of professional conduct prescribed by DR 7-104(A)(l). IV Our resolution of the question above brings us to the principal dispute in this appeal — whether the voluntary statements made by the defendant after knowingly and understandingly waiving his Miranda rights must nonetheless be suppressed solely because the assistant prosecuting attorney violated DR 7-104(A)(l). The Court of Appeals majority held that an ethics violation standing alone does not warrant or require the suppression of evidence. The defendant has argued that the violation of DR 7-104(A)(l) was a violation of his rights and that unless his statments are suppressed, he will have no effective remedy to redress the wrong done to him. This argument rests upon a basic misconception of the Code of Professional Responsibility. The provisions of the code are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar. Although it is true that the principal purpose of many provisions is the protection of the public, the remedy for a violation has traditionally been internal bar disciplinary action against the offending attorney. The sanctions available are by no means trivial. The attorney faces permanent disbarment. In these respects the provisions of the code are no different from the provisions found in the codes of conduct for other professions, such as medicine or architecture. They are all self-governing, in-house regulations. The admissibility of evidence in a court of law, on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions. New courts have mixed the standard of conduct found in DR 7-104(A)(1) or any other provision of a code of professional responsibility into questions concerning the admissibility of evidence in criminal or civil cases. Even the courts which have embraced this novel concept have linked their decisions to do so with constitutional doctrines or statutory provisions not recognized or present in Michigan’s jurisprudence. See, for example, People v Hobson, 39 NY2d 479; 348 NE2d 894; 384 NYS2d 419 (1976). The defendant also has argued that if his statements are not suppressed this Court would in effect give its stamp of approval to unethical conduct. As this opinion clearly indicates in part III above, such a conclusion is unsupported. To the contrary, part III reflects a commitment by the Court to insure that future violations do not occur. The facts in the case at bar provide a good example why a violation of DR 7-104(A)(l) standing alone should be dealt with by bar disciplinary action rather than by withholding relevant and material evidence from the jury. The defendant had a story he wanted to tell to the authorities, presumably to clear himself of the murder charge lodged against him. He sent word to the authorities and asked to speak with them. He waived his Miranda rights with full knowledge of what he was doing. He specifically stated that he wanted to talk without his attorney present. The assistant prosecuting attorney and the detective did little except listen to what the defendant had to say and take notes. The defendant’s state ments were completely voluntary and there was no overreaching of any kind. When asked if he was telling the whole truth, defendant said that he was. Reversal of the conviction and grant óf a new trial (if in fact the witnesses and evidence presented in 1975 could be obtained for a second trial) solely because of this less than consequential violation of DR 7-104(A)(l) would constitute reprehensible "overkill”. In cases such as this, bar disciplinary action directed against the offending attorney would be a more appropriate response and would serve as a more effective deterrent than the indirect sanction of the exclusionary rule. Although the presence of a prosecuting attorney is still one factor to be considered in assessing the "totality of the circumstances” in order to determine whether a defendant’s statements are constitutionally admissible, we find no unconstitutional intrusion in this factual situation. This resolution makes it unnecessary to consider the state’s argument that if admission of the defendant’s statements at trial was error, it was harmless. V The final question is whether the assistant prosecuting attorney’s conduct was so fundamentally unfair and shocking to the sensibilities of reasonable persons that it rises to the level of a violation of due process of law. We find that it does not. As noted above, the assistant prosecuting attorney’s conduct, although a violation of DR 7-104(A)(1), was relatively innocuous. It pales in comparison to the cases in which a due process violation has been found. See, for example, Rochin v California, 342 US 165; 72 S Ct 205; 96 L Ed 183 (1952). This is not a case in which the authorities used deception or force to extract a confession from an ignorant and helpless defendant. (Compare Brewer v Williams, 430 US 387; 97 S Ct 1232; 51 L Ed 2d 424 [1977], dealing with the right to counsel.) At most they acquiesced in a course of conduct initiated by a defendant who knew precisely what he was doing after they offered him the right to have counsel present and after that right was refused. We do not find this so unfair or so shocking that the defendant’s conviction must be reversed. We affirm. Ryan, J., concurred with Coleman, C.J. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Trial transcript, pp 15-16 Id., pp 16-17. At the Walker hearing before trial the detective testified: "Q. [by the prosecutor]: Now, did you have occasion to interview him [the defendant] at any time after that? "A. Yes, on January 29, 1975. "Q. And where did that take place? "A. At the Oakland County Jail. "Q. Who was present? "A. Yourself, myself and Mr. Green. ”Q. And how did you come to be over there? "A. Mr. Green had sent word from the jail through one of the deputies that he wished to talk to us.” Trial transcript, p 27. There is little testimony about the conversation between the detective and the assistant prosecuting attorney. The detective testified at trial: "Q. [by defense counsel]: Did you and [assistant prosecuting attorney] talk to each other before you interviewed Ernest Green on January 29, 1975? "A. About what, sir. ”Q. About anything, about the interview? "A. I presume we did, yes.” Trial transcript, p 423. At the Walker hearing the detective testified as follows, speaking in response to defense counsel’s questions: "He [the defendant] waived his rights including the lawyer, he waived, he told us that he wished to discuss this case with us without you.” Trial transcript, p 47. Trial transcript, p 48. Appellee’s brief, p 30. See also Michigan State Bar Committee on Professional Ethics Opinion 202, 46 Mich St Bar J, No 5, pp 29-30 (1967). American Bar Association Opinions of the Committee on Professional Ethics (1967), p 360. 46 Mich St Bar J, No 5, pp 29-30 (1967). ABA Code of Professional Responsibility (1975), pp 33C-34C. See, for example, United States v Carlson, 423 F2d 431, 442 (CA 9, 1970), cert den 400 US 847 (1970); United States v Four Star, 428 F2d 1406, 1407 (CA 9, 1970), cert den 400 US 947 (1970); United States v Springer, 460 F2d 1344, 1353-1354 (CA 7, 1972), cert den 409 US 873 (1972); and United States v Thomas, 474 F2d 110, 111-112 (CA 10, 1973), cert den 412 US 932 (1973). For a recent discussion of the purposes and intended effect of a Code of Professional Responsibility, see Informal Opinion 1420 issued by the American Bar Association Standing Committee on Ethics and Professional Responsibility, June 5, 1978. It appears in the ABA Journal of July 1978. 64 ABA J 1173 (1978).	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Per Curiam. Defendant pleaded guilty of two counts of delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401X2) (a)(iv), which were charged in two separate informations. In exchange, a third information charging the same offense was dismissed. For one conviction, defendant was sentenced to two to twenty years’ imprisonment. For the other conviction, defendant was sentenced to three to twenty years’ imprisonment, to be served consecutively to the other sentence. Defendant appeals these convictions and sentences as of right. We affirm. On appeal, defendant contends that his sentences are disproportionate to the circumstances of the crimes and his personal history. He asserts that his actions were those of a "purchaser” rather than a "dealer” and that the offenses should have been at the extreme low end of the scale of seriousness, particularly in view of the relatively small amounts of cocaine._ We note, as did defendant, that his sentences were within the guidelines recommendation of one to five years. These sentences are therefore presumptively valid. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). Nevertheless, defendant contends that the sentences are disproportionate, particularly in light of the consecutive nature of his three- to twenty-year sentence. We disagree. In People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), our Supreme Court reaffirmed that proportionate sentences must take into account not only the seriousness of the offense but the individual characteristics of the defendant. In this case, while defendant may have provided only small amounts of cocaine to the undercover police officer, he did so on three occasions. The record indicates, however, that defendant’s efforts were on occasion aimed at acquiring larger amounts. Turning to defendant’s personal history, we note that he has four prior felony convictions, including one drug offense and two weapons offenses. Although there may have been mitigating circumstances, there is nothing in the record to suggest that the sentences violate the principle of proportionality. Furthermore, the cumulative nature of defendant’s sentences is irrelevant to the determination whether his sentences are excessive. People v Marshall Warner, 190 Mich App 734, 736; 476 NW2d 660 (1991). Under the circumstances, we are convinced that the trial court did not abuse its discretion in sentencing defendant within the guidelines. Next, defendant contends that the trial court erred in ordering his three- to twenty-year sentence to be served consecutively to his two- to twenty-year sentence. MCL 333.7401(3); MSA 14.15(7401)(3) provides in relevant part: A term of imprisonment imposed pursuant to subsection (2)(a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony. [Emphasis added.] On appeal, defendant argues that the phrase "another felony” should be interpreted to mean a different and distinct felony, not an additional felony under the same provision of the controlled substances act. Upon careful consideration we cannot agree with defendant’s interpretation of this provision. The plain meaning of the term "another” includes both "additional” and "different or distinct.” See, e.g., Black’s Law Dictionary, Special Deluxe Fifth Edition (1979). Therefore, "another felony” would include the commission of an additional felony violation of the same controlled substances provision, the commission of a different felony violation of the controlled substances act, or the violation of any other felony provision. Furthermore, this interpretation does not render MCL 768.7b; MSA 28.1030(2) meaningless. The two statutes address separate and distinct situations. Although imposition of consecutive sentences is mandated under MCL 768.7b; MSA 28.1030(2) when a defendant commits a felony while other felony proceedings are pending, MCL 333.7401(3); MSA 14.15(7401)(3) governs when a defendant commits certain controlled substance offenses and another felony, irrespective of pending felony charges. People v Mamon, 190 Mich App 124, 126; 475 NW2d 378 (1991). In his appellate briefs, defendant states that the trial court erred in denying his motion to dismiss the charges because of the delay in his arrest. Contrary to his assertions, the trial court’s ruling with regard to this issue is in the record. Never theless, defendant fails to argue the merits of this allegation of error in any of the three briefs filed by him in this appeal. Consequently, we deem the issue abandoned. City of Midland v Helger Construction Co, Inc, 157 Mich App 736, 745; 403 NW2d 218 (1987). As his last issue, defendant contends that the trial court erred in failing to find entrapment following an evidentiary hearing. In a lengthy opinion in which the then newly released People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990), and its predecessors were analyzed, the trial court denied defendant’s motion to dismiss, finding that defendant had not been entrapped: The Court: . . . [W]hen you juxtapose those facts against what I have in this record — and the only indication by Officer Joyner is that on September 9 of 1989, she asked Mr. Kent if he knew where she could find some coke. He said to look in his pants pocket, but then said if she had the money, he could get it. She did have the money. She drove them there, and he entered Hugo’s bar and returned with one-and-a-quarter grams and gave her back the difference in cash of the $300 that she gave to him. She further testified that there was no date. There was no purchasing of drinks, no special kind of pressure or request or anything at all placed upon the Defendant by her. She testified that she saw the Defendant 15 or 20 times and only spent any time with him on three occasions and each of those three occasions were when the Defendant purchased drugs for her. Other than that, it was simply a waitress/bar/patron relationship. The Court: ... I don’t think the mere question by a waitress saying do you know where I can get some coke would ordinarily incite, if you will, or cause a reasonably law-abiding person to go ahead and violate the law, but I did consider [that risk discussed in footnote 19 of Jamieson], Mr. Jereck, when I read those statements. A trial court’s finding following an entrapment hearing will be upheld unless clearly erroneous. Jamieson, supra, p 93. Recently, in People v Fabiano, 192 Mich App 523; 482 NW2d 467 (1992), this Court discussed the effect of the Supreme Court’s decision in People v Juillet, 439 Mich 34; 475 NW2d 786 (1991), on the objective test for entrapment established in Jamieson. In a 2-1 decision, this Court concluded that the "nature” of the objective test had been changed. Fabiano, supra, p 526. The Court concluded that "four justices would find entrapment if (1) the police engaged in impermissible conduct that would have induced a person similarly situated to the defendant, though otherwise law-abiding, to commit the crime, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated by the Court.” Id. Although the Fabiano Court remanded that case to the trial court, we are convinced that such a result is not warranted on the facts of this case. In contrast to Fabiano, the facts presented here did not present even a "close case” of entrapment, let alone a "very close case.” Furthermore, although the trial court applied the "average law-abiding person” standard, the trial court’s opinion reflects its awareness of Justice Brickley’s position regarding the reaction of a person in defendant’s "shoes” to the police conduct in question. Lastly, the trial court did not find that the police conduct was reprehensible. On the basis of our review of the record, such a finding would clearly have been in error. Therefore, we conclude that it is unnecessary to remand this case for consideration of whether entrapment exists under the "second prong” of the test as defined in Fabiano. We are convinced that, under either test, the evidence presented failed to establish entrapment. Hence, the trial court properly denied defendant’s motion to dismiss. Defendant’s convictions and sentences are affirmed.	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Wahls, J. Petitioners appeal by leave granted from an order of the Wayne Circuit Court that upheld a declaratory ruling of the Liquor Control Commission (lcc). The lcc had found that it was prohibited by statute from licensing as a brewer a corporation that is a wholly owned subsidiary of a retail licensee. We agree and affirm. Petitioner Traffic Jam & Snug, Inc., operates a restaurant, bakery, and cheese factory and holds class C and specially designated merchant liquor licenses. Petitioner Dylan Enterprises, Inc., owns the realty where Traffic Jam is located, and both Traffic Jam and Dylan Enterprises are solely owned by petitioner Ben Edwards. Edwards desired to add a "mini-brewery” to Traffic Jam for the purpose of brewing and selling beer to Traffic Jam patrons for consumption on and off the premises. Such an arrangement is commonly known as a "brewpub,” i.e., a restaurant or bar that produces one or more types of beer on its premises, frequently in an area where patrons can observe the brewing process. Edwards intended to create a corporation that would be a wholly owned subsidiary of Traffic Jam & Snug, Inc., license the subsidiary as a brewer, and then have the subsidiary sell its product to Traffic Jam and other retail licens ees. Edwards sought a declaratory ruling from the lcc, framing the issue as follows: Acknowledging that MCL 436.31 [MSA 18.1002] prohibits a manufacturer from having any interest in any other vendor, does MCL 436.31 [MSA 18.1002] prohibit a corporate retail licensee from owning a subsidiary corporation licensed as a manufacturer (brewer)? The lcc found that MCL 436.31; MSA 18.1002 barred petitioners’ proposed arrangement and, hence, the lcc was without authority to license the proposed subsidiary corporation as a brewer. Petitioners appealed to the circuit court, which ruled in favor of the lcc’s interpretation of §31. This appeal followed. Although we recognize that several valid arguments are made by petitioners in opposition to the lcc’s determination, we believe that they must fail in light of the Legislature’s intent in enacting the Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., an intent that is overwhelmingly manifested in the act. The Liquor Control Act imposes several bars to the creation of "tied-house” systems of alcoholic beverage production, distribution, and sale. "Tied house” statutes are aimed at preventing the integration of manufacturing, wholesale, warehouse, and retail outlets in the liquor industry. ... It has been a fear . . . that economic power at one level in this four-tiered system (manufacturers, warehouses, wholesalers, and retailers) could be transferred to another level in order to gain control at the second level. [Borman’s, Inc v Liquor Control Comm, 37 Mich App 738, 746; 195 NW2d 316 (1972).]_ Section 31 proscribes several types of business arrangements that tend to foster vertical integration. Expressions of the Legislature’s intent to prevent vertical integration in the state’s liquor industry, and a few narrow exceptions for certain situations, may also be found elsewhere in the Liquor Control Act. Section 31 provides, in part: (1) Except as provided in section 31a, a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, out-state seller of wine, outstate seller of mixed spirit drink, or vendor of spirits shall not have any financial interest, directly or indirectly, in the establishment, maintenance, operation, or promotion of the business of any other vendor. (2) Except as provided in section 31a, a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, out-state seller of wine, outstate seller of mixed spirit drink, or vendor of spirits or a stockholder of a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, outstate seller of wine, outstate seller of mixed spirit drink, or vendor of spirits shall not have an interest by ownership in fee, leasehold, mortgage, or otherwise, directly or indirectly, in the establishment, maintenance, operation, or promotion of the business of any other vendor. (3) Except as provided in section 31a, a manufacturer, mixed spirit drink manufacturer, ware houseman, wholesaler, outstate seller of beer, out-state seller of wine, outstate seller of mixed spirit drink, or vendor of spirits shall not have an interest directly or indirectly by interlocking directors in a corporation or by interlocking stock ownership in a corporation in the establishment, maintenance, operation, or promotion of the business of any other vendor. (4) Except as provided in section 31a, a person shall not buy the stocks of a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, outstate seller of wine, outstate seller of mixed spirit drink, or vendor of spirits and place the stock in any portfolio under an arrangement, written trust agreement, or form of investment trust agreement and issue participating shares based upon the portfolio, trust agreement, or investment trust agreement, and sell the participating shares within this state. The act’s statutory definition of "manufacturer” includes brewers, MCL 436.2j; MSA 18.972(10), while "vendor” means a person licensed by the lcc to sell alcoholic liquor, MCL 436.2m(g); MSA 18.972(13)(g), including retailers. The primary goal of the judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. State Treasurer v Wilson, 423 Mich 138, 143; 377 NW2d 703 (1985); Joy Management Co v Detroit, 176 Mich App 722, 730; 440 NW2d 654 (1989). Statutes are to be construed as a whole; constructions that render a statute or any part of it surplusage are to be avoided. Niggeling v Dep’t of Transportation, 183 Mich App 770, 775; 455 NW2d 415 (1990). The rules of statutory construction serve as guidelines to assist in determining legislative intent, Rios v Dep’t of State Police, 188 Mich App 166, 169; 469 NW2d 71 (1991), but once the intention of the Legislature is discovered, it must prevail regardless of any conflicting rule of statutory construction, Attorney General v American Way Life Ins Co, 186 Mich App 679, 682; 465 NW2d 56 (1991). Furthermore, the courts will give some deference to the interpretation of a statute by the agency involved in implementing it. Id., at 683. Petitioners claim that § 31, by its plain terms, is intended to govern tied-house arrangements initiated by manufacturers, wholesalers, and other enumerated licensees with other vendors, but that the Legislature’s failure to list retailers among the licensees shows that it did not intend § 31 to govern arrangements entered into by retailers. Petitioners rely on the familiar rule of statutory construction that the express mention of one thing implies the exclusion of others. See In re Lemmer, 191 Mich App 253, 256; 477 NW2d 503 (1991). According to petitioners, restrictions on vertical integration by retailers are addressed by a different section of the act, MCL 436.19d; MSA 18.990(4), which provides, in part: (2) A specially designated distributor or specially designated merchant or any other retailer shall not hold a mixed spirit drink manufacturer, wholesale, warehouse, outstate seller of beer, outstate seller of mixed spirit drink, or outstate seller of wine license. Noticeably lacking from § 19d is the express prohibition of a retail licensee holding a manufacturer license for the brewing of beer. Petitioners conclude that the Legislature’s failure in § 19d to restrict the holding of a brewer’s license by a retailer shows an intent to allow the practice, and further, that if § 31 were interpreted so as to include retailers, then § 19d would be rendered superfluous. Niggeling, supra. Although we recognize these arguments, we believe that the lcc’s determination was correct. The lcc followed the reasoning of California Beer Wholesalers Ass’n v Alcoholic Beverage Control Appeals Bd, 5 Cal 3d 402; 96 Cal Rptr 297; 487 P2d 745 (1971), a case remarkably similar to this case. California Beer Wholesalers Ass’n concerned a corporation organized into two divisions managed and controlled by the same officers and directors. The retail division possessed numerous retail alcoholic beverage licenses. The corporation appealed from the initial denial of its wholesale division’s application for a beer and wine wholesaler’s license. California’s tied-house statutes in relevant part (1) prohibited wholesalers from owning, directly or indirectly, any interest in a retail license, (2) prohibited any retail licensee from holding any ownership or interest, directly or indirectly, in a distilled spirit manufacturer, and (3) contained no express prohibition with regard to a retail licensee holding any interest in a beer and wine wholesaler. The Supreme Court of California summarized: Once the retailer of alcoholic beverages acquires a wholesale beer and wine license, that retailer automatically "holds” the wholesale license; he is accordingly a beer and wine wholesaler "holding” a retail liquor license, and this integration of licenses is specifically forbidden by section 25502. To rule otherwise would be to create the anomolous [sic] situation that the right to hold both licenses would depend upon the fortuity of the order in which a party applied for them. But the error of such an incongruous result would go deeper; it would violate the legislative design of segregating wholesale from retail interests; it would permit, rather than prevent, the merging of the marketing functions and powers that the Legislature meant to keep separate. [Id. at 404.] We find this logic persuasive and adopt it as our own. Section 31 applies to holders of retail licenses, and to hold otherwise would set at naught the public policy of this state, clearly expressed by the Legislature, to prevent vertical integration in the alcoholic liquor business. This holding is consistent with the intent of the Legislature in enacting § 31, our overriding concern in matters of statutory construction. It may very well be that brewpubs are desirable features on our economic and social landscapes, but this is not a question for us, nor is the licensing of brewpubs per se the question before us. Rather, the question is whether any holder of a retail license, be the retailer a restaurant or a retailing behemoth that generates millions of dollars in sales, may also be licensed as a manufacturer. As the lcc put it: The Commission is fully aware, as pointed out by Petitioner in the Request for Declaratory Ruling . . . that the commonly accepted evil which tied-house prohibitions seek to prohibit is manufacturer control of retail outlets. This is because historically manufacturers have had superior economic influence vis-a-vis retailers. However, in today’s business atmosphere it would appear possible, feasible, and perhaps even likely for a large retailer holding liquor licenses to wish to acquire a manufacturer of alcoholic liquor. The Commission would submit that to the extent tied-house arrangements are an evil, the harm is the same regardless of whether it is the manufacturer or the retailer who is the dominant party in the business arrangment.[ ] Affirmed. Petitioners did not intend to have the subsidiary corporation sell beer directly to consumers on the premises of Traffic Jam and the brewery. See OAG, 1985-1986, No 6397, p 397 (October 27, 1986). See, e.g., MCL 436.19d; MSA 18.990(4) (specific restrictions on parties that may hold retail, wholesale, and warehouse licenses); MCL 436.30; MSA 18.1001 (manufacturers, warehousemen, and wholesalers barred from assisting other vendors by gift or loan of money or property); MCL 436.30b; MSA 18.1001(2) and MCL 436.30c(l); MSA 18.1001(3)(1) (statutes setting forth the structure for business arrangements between suppliers and wholesalers of beer and wine); the purpose of the statutes is "[t]o promote and maintain a sound, stable, and viable 3-tier system of distribution of [alcoholic beverages] to the public.” MCL 436.30b(l)(b); MSA 18.1001(2)(l)(b) and MCL 436.30c(l) (b); MSA 18.1001(3)(l)(b). The act itself states, "This act shall be liberally construed to effect the intent and purposes herein set forth.” MCL 436.54; MSA 18.1025. Petitioners bring to our attention the fact that subsection 2 of § 19d was added to the statute by 1969 PA 124, apparently in response to the lcc’s grant of a warehouse license to a retailer. See Borman’s, Inc, supra. Petitioners argue from these facts that, before the amendment of § 19d, even the lcc believed that § 31 did not prohibit retailers from vertically integrating "upstream,” as the petitioner retailer in Borman’s had done before the passage of 1969 PA 124. On the other hand, in 1969 the Legislature also passed SB 436, which would have added retailers to those licensees prohibited by § 31 from holding interests in other vendors. This bill was vetoed by the Governor on the ground of administrative impracticability, because it would have barred retailers from owning stock in any publicly traded corporation having an interest in alcoholic liquor licenses, including food and hotel chains. See 1969 Journal of the Senate 2240. Petitioners attempt to distinguish California Beer Wholesalers Ass’n by arguing that, unlike this case, California Beer Wholesalers Ass’n concerned a single corporation’s acquisition of licenses from more than a single tier in California’s tied-house scheme. Petitioners only briefly claim the case has no value because in the present case two licensees are involved, a corporation and its wholly owned subsidiary. Petitioners provide no authority for the proposition that two corporations, each solely owned by a single person, operating on the same premises for their mutual benefit, should not be considered a single entity for the purpose of alcoholic beverage licensing and § 31. Nor is there any indication in the record provided this Court of the details of petitioners’ proposed corporate organization, other than that the brewer would be a wholly owned subsidiary of Traffic Jam. It is also possible that, even if the two corporations were to be regarded as separate entities, the subsidiary brewer would run afoul of § 31’s provision that "a manufacturer . . . shall not have any financial interest, directly or indirectly, in the establishment, maintenance, operation, or promotion of the business of any other vendor.” Neither party argues the meaning of "financial interest,” and because we will not presume the petitioner corporations are separate entities for the purpose of alcoholic beverage control, we will not address the subject. We note, however, that petitioners’ assertion, if accepted, would elevate form over substance and provide any person operating at any level in the three-tier system a facile method of circumventing public policy through a corporate reshuffling. Cal Bus & Prof Code, § 25502. Cal Bus & Prof Code, § 25506. Petitioners complain at length that the quoted paragraph is a "finding that the proposed licensing is 'evil’ as a matter of law [and] is arbitrary, capricious, and an abuse of discretion,” as well as being outside the scope of the lcc’s authority. We regard the lcc’s statement as merely an expression of longstanding public policy.	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Michael J. Kelly, J. Plaintiff Benjamin P. Lawrence filed suit against defendants Will Darrah & Associates, Inc., and Lucy J. Barker (hereinafter defendant), an insurance representative underwriter, to collect damages recoverable under the insurance policy and consequential damages in the form of lost profits caused by defendant’s failure to timely pay plaintiff’s claim. Plaintiff’s claim stems from the theft of his 1975 International Harvester tractor truck used in his capacity as an independent contractor. The truck was insured under a 1981 insurance policy written by defendant. Defendant failed to pay plaintiff’s claim under the policy after the truck was stolen. Plaintiff then brought this action, seeking recovery for the truck and consequential damages in the form of lost profits. Judgment in favor of plaintiff was rendered in part by the court and in part by the jury, totaling $155,153 ($19,250 for damages under the insurance contract and $70,800 for lost profits, plus interest on both). Defendant appealed as of right, and plaintiff cross appealed. Defendant first claims that the trial court erred in denying her motion for a directed verdict because the proofs at trial showed only that she knew that plaintiff used his tractor in a commercial venture and that this was insufficient to create a factual issue regarding whether lost profits were foreseeable when the policy was issued. We agree. The trial court should have directed a verdict in favor of the defendants and against the plaintiff with regard to plaintiff’s claim for lost profits. It is undisputed that the policy in question covered only physical damage to the truck. That is, plaintiff bought and paid for insurance coverage for loss of or damage to the vehicle itself and not for any loss of earnings, productivity, or profits occasioned by down time or loss of the use of the vehicle itself. Plaintiff’s lost profits are not recoverable as consequential damages contemplated by the parties at the time the contract was made. Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854). The commentators usually say that consequential damages are borne by the undertaking party, in this case the insurance underwriters, only if the magnitude or appreciation of the risk was known at the time of the contract. In this case, the parties and the court below were beguiled by the fact that the insurance company knew that plaintiff used his truck for business. They concluded that, knowing the truck was used for business, the insurance company should be charged with knowl edge that loss of the truck meant loss of business profits. That deduction is correct, but irrelevant. It overlooks the important fact that the contract did not insure against loss of profits. Such knowledge does not automatically establish that the parties contemplated damages for lost profits at the time the contract was made. In sum, plaintiff may not recover lost profits as consequential damages under the circumstances of this case. The trial court erred in denying defendant’s motion for a directed verdict in this regard. Defendant next argues that the trial court erred in its assessment of interest on the damages award. It appears from the record that interest on the $19,250 award was calculated on a compound interest basis rather than on a simple interest basis as mandated by MCL 500.2006; MSA 24.12006. Therefore, we remand this matter to the trial court for modification of the judgment to reflect simple interest. Lastly, plaintiff argues that the trial court erred in granting defendant’s motion for summary disposition of plaintiff’s claim of intentional infliction of emotional distress. We disagree. Defendant’s obligations under the insurance policy were contractual in nature. A mere failure to pay a contractual obligation does not amount to outrageous conduct for purposes of the tort of intentional infliction of emotional distress. Even a wilful or bad-faith failure to pay the contractual obligation does not amount to outrageous conduct. Wendt v Auto-Owners Ins Co, 156 Mich App 19, 27-29; 401 NW2d 375 (1986); McCahill v Commercial Union Ins Co, 179 Mich App 761, 768; 446 NW2d 579 (1989). Therefore, the trial court did not err in granting defendant’s motion for summary disposition of plaintiff’s claim of intentional infliction of emotional distress. Reversed in part, affirmed in part, and remanded for proceedings consistent with this opinion.	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Per Curiam. This case arises out of condemnation proceedings instituted under MCLA §§ 213.361-213.381 (Stat Ann 1971 Cum Supp §§ 8.261 [1]-8.261 [21]). The road commission instituted proceedings to condemn 1.33 acres of defendants’ land in order that the intersection of Brighton and Bauer Boads might be relocated. Defendants moved to review the necessity of the taking pursuant to MCLA § 213.368 (Stat Ann 1971 Cum Supp § 8.261 [8]), alleging an abuse of discretion on the part of the board. The trial court found the board abused its discretion and entered a judgment dismissing the board’s petition. From that judgment the board appeals. The board filed a declaration of necessity along with its petition, asserting that relocation was necessary by reason of the high accident rate in the area of the present intersection. The law with regard to the effect of a declaration of necessity by a condemning authority was set forth in the recent decision of this Court in Kalamazoo Road Commis sioners v. Dosca (1970), 21 Mich App 546, 548, wherein it was held: “A declaration of necessity by the condemning • authority serves as prima facie evidence of the necessity and consequently makes it incumbent upon the property owner to show the contrary. City of Allegan v. Vonasek (1932), 261 Mich 16. The record in this case fails to show that the defendants have overcome plaintiff’s prima facie show of necessity by any proofs of fraud or an abuse of discretion.” PA 1966, No. 295 (MCLA §§ 213.361-213.391, supra) gave the legislative authority to determine necessity to the instant condemning agency. Judicial review of the necessity of the taking was provided for by way of a petition in circuit court by any person having a justifiable interest and “claiming fraud or abuse of discretion, or both”. MCLA § 213.368, supra. In the instant case, the board had determined that the intersection in question was a traffic hazard and that the relocation to the north would not only alleviate this condition, but also would improve visibility and be less expensive than relocation to the south. At the circuit court hearing, the petitioner presented two civil engineers, the clerk of the board, and an individual who resided to the south of the present intersection in support of the conclusions previously arrived at. The defendants, on the other hand, although having the burden of proof, offered no evidence whatsoever; but rather they argued that the proposed relocation would increase the hazard associated with a curve located to the east and that the hazard associated with the present intersection could be alleviated by the use of speed limit signs. The board countered these arguments by claiming that they could afford only the proposed improvement, but that the curve to the east would be improved as soon as possible. The court found that the board had acted “within its limitations in the area of money”, that evidence was lacking in regard to correction of a curve to the east, and that no efforts had been made to alleviate the present hazard by the use of speed limit signs. Consequently, we have the issue: Bid the trial court err in finding that the road commission abused its discretion in determining that it was necessary to relocate the road and intersection, and thereby required the acquisition of defendants’ land for such relocation? What authority did the trial judge have in reviewing the actions of the road commission? What general policy should be adopted for such a situation? Fortunately, we have a decision from the State of Texas which throws some light on the subject. In Webb v. Dameron (Tex Civ App, 1949), 219 SW2d 581, 584, it was held: “Necessarily a broad discretion is vested in those to whom power of eminent domain is delegated, and as a general rule the courts of this country will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion.” Additional assistance is found in United States v. Agee (CA 6, 1963), 322 F2d 139, 141, where it was held: “First we consider the question of the scope of judicial review. Appellee argues that the district court and this Court are foreclosed absolutely from reviewing the decision of the condemning authority. We are unwilling so to hold, though it is well-established that the scope of judicial review of administrative determinations in eminent domain proceedings is extremely narrow.” Again, we must emphasize the fact that the burden of proof was on the defendants. Certainly, the fact that the relocation to the north would cost less would not be fraud or an abuse of discretion. Further, the plans for the other curve were not before the court at that hearing and the question of whether or not signs should be erected would be a matter of judgment addressed to expertise of the road commission. While this Court has repeatedly held that it does not reverse a trial judge, sitting without a jury, unless the findings are clearly erroneous, regretfully, after a careful review of the record as here presented, we hold that the trial court was clearly erroneous in finding that the Board of County Road Commissioners abused its discretion in its determination of necessity. Reversed and remanded for proceedings not inconsistent with this opinion. In fairness to the learned circuit judge, it should be mentioned that it is within the realm of possibility that he did not have the benefit of this decision on October 19, 1970, the date upon which the judgment was signed.	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Per Curiam. On August 14,1970, a Wayne County jury convicted defendant Tyrone Williams and defendant James Marlin, Jr., on charges of assáult with intent to rob while armed, a violation of MCLA 750.89; MSA 28.284, and assault to do great bodily harm less than murder, a violation of MCLA 750.84; MSA 28.279. On this appeal defendant Williams argues that the trial judge erred in refusing to permit him to introduce evidence of an alibi defense. Williams in formed the judge of his wish to present an alihi defense on the first day of trial. At that time the judge questioned "Williams and Williams said that “three weeks ago” he had informed his lawyer of his alibi defense. The judge determined that there had been ample opportunity to present timely notice of alibi. In such circumstances the judge justifiably refused to permit Williams to introduce witnesses in support of his alibi. MCLA 768.20; MSA 28.1043 and People v Vaughn, 31 Mich App 599 (1971). The defendants contend that the failure of defense counsel to file a notice of alibi deprived them of the effective assistance of counsel. In People v Jelks, 33 Mich App 425, 431 (1971), we said: “A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately.” A motion for a new trial was filed in this case in which the denial of effective-assistance-of-counsel issue was raised. However, at the hearing on the motion no testimony or other evidence was offered bearing on the question whether defense counsel acted diligently and, in particular, counsel’s explanation or lack of explanation for failing to file a notice of alihi has not been spread on the record. Accordingly, we have nothing before us which would justify our concluding that the defendants had evidentially supported their claim and excluded reasonable hypotheses consistent with the view that they were adequately represented by counsel. When, during the jury’s deliberations, the foreman submitted a question, the judge discussed his proposed response with counsel for both parties and defense counsel did not voice any objection to the proposed response which the judge later gave to the jury’s question. The defendants further contend that the judge should have granted their request to instruct the jury on the lesser offenses of the attempt to commit the charged offenses. The contention is without merit. The record shows that the completed offenses were committed. There is no evidence in the record from which the jury could reasonably have inferred that the charged offenses were not committed and that the actions of the defendants did not go beyond the attempt stage. Accordingly, the judge properly refused to instruct the jurors that they could convict the defendants of the crimes of attempt to commit the charged offenses. Defendant Marlin argues that he was prejudiced by the judge’s refusal to permit the defendant Williams to introduce evidence of alibi. Marlin testified that he was not with Williams on the evening the crime was committed. In that context, we do not think that Marlin was deprived of a fair trial by the judge’s ruling that Williams’ failure to give notice of alibi deprived him of the right to produce alibi witnesses. Affirmed.	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Per Curiam. Defendants appeal as of right from a judgment entered in favor of plaintiff. Before this action, plaintiff was a judgment creditor of defendant Carrigan Quality Homes, Inc., now known as Carrigan Construction & Energy Products, Inc. Plaintiff brought this action against individual defendants Claude Carrigan and Billie Carrigan, husband and wife, after her judgment against the corporation was not satisfied, alleging that the Carrigans had transferred nearly all the corporation’s assets out of its ownership and into their own between the time a mediation agreement was reached and the consent judgment against the corporation was entered, thereby frustrating her attempt to enforce the judgment against the corporation. Plaintiff’s claim was based on alleged violations of § 7 of the Uniform Fraudulent Conveyance Act, MCL 566.17; MSA 26.887, and § 551 of the Business Corporation Act, MCL 450.1551; MSA 21.200(551) (since amended by 1989 PA 121). We reverse in part and remand the case for additional findings of fact. At the outset, we express our opinion that all the factual findings made by the trial court are supported by the evidence and are not clearly erroneous, MCR 2.613(C). In particular, we note that the trial court’s findings concerning the lack of consideration for the conveyances to defendants and the insolvency of the corporation at the time of the conveyances and its finding that the transfers were made in an attempt to frustrate plaintiffs collection of the judgment are well-founded. We find it necessary to remand this case, however, because of the lack of certain findings that are needed to fully address several basic issues raised by defendants and because of an error of law. The trial court made no findings regarding the basis of defendant Billie Carrigan’s liability. We agree with Mrs. Carrigan that she cannot be held liable under MCL 450.1551; MSA 21.200(551) because she is not a director of the defendant corporation. Because of the lack of a finding by the trial court, however, we are unable to review her liability under the Uniform Fraudulent Conveyance Act. Section 7 of that act provides: Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. [MCL 566.17; MSA 26.887.] Little testimony was elicited concerning Mrs. Carrigan’s role or knowledge of the transfer of the corporation’s assets. Mrs. Carrigan’s assertion that she cannot be held liable unless she personally conveyed the assets, however, is incorrect. A grantee need not personally participate in a fraudulent conveyance in order to be liable to a defrauded creditor. Spencer v Miller, 279 Mich 194, 200; 271 NW 731 (1937). It appears from the record that the conveyances to Mrs. Carrigan were without consideration. A grantee who receives property or money without giving fair consideration to the fraudulent grantor is subject to having the conveyance set aside and also subject to any other remedies normally available to the creditor. Kelley v Thomas Solvent Co, 722 F Supp 1492, 1499 (WD Mich, 1989). Furthermore, fraudulent intent may be inferred where a conveyance renders the grantor insolvent. Cross v Wagenmaker, 329 Mich 100, 104; 44 NW2d 888 (1950). The courts will closely scrutinize transactions between a husband and wife when creditors are involved. Bentley v Caille, 289 Mich 74, 79; 286 NW 163 (1939); Linke v Goodrich, 30 Mich App 228, 230; 186 NW2d 5 (1971). For reasons that will be discussed below, we strongly suspect that the conveyances here may be deemed as between family members, rather than from the corporation, but we are unable to so hold absent a finding from the trial court. We therefore remand the case for further findings. If needed, the trial court may allow additional testimony to be heard before making its findings. MCR 7.216(A)(5). Defendant Claude Carrigan argues that he cannot be held personally and individually liable under the Uniform Fraudulent Conveyance Act because the assets were conveyed by the corporation, not him. The law respects corporate entities unless they are employed for fraud or other purposes improper for the corporate form. Disregard of the corporate form rests on notions of equity, whether an action is at law or one for equity, and is made in light of the entire spectrum of relevant evidence in a particular case. Om-El Export Co, Inc v Newcor, Inc, 154 Mich App 471, 480; 398 NW2d 440 (1986); Kline v Kline, 104 Mich App 700, 703; 305 NW2d 297 (1981). Mr. Carrigan was a director and forty percent shareholder of the closely-held corporation. The record is rife with evidence from which the trial court could have "pierced the corporate veil” and concluded that Mr. Carrigan was acting on his own behalf, not that of the corporation, as the grantor-in-fact and used the corporation’s assets in a way calculated to defraud plaintiff and enrich himself. However, no findings were made regarding whether the corporate form should be disregarded, and this Court is not in a position to find facts. We note, however, that Mr. Carrigan’s § 7 liability as a grantee, a question not decided by the trial court, appears to be beyond question. The trial court found that the transfers were made with fraudulent intent and that Mr. Carrigan knew of and participated in the fraud. Therefore, plaintiff may seek to have the transfers to Mr. Carrigan voided. ACLI Government Securities, Inc v Rhoades, 653 F Supp 1388 (SD NY, 1987), aff'd 842 F2d 1287 (CA 2, 1988); Deyong Management, Ltd v Previs, 47 Wash App 341; 735 P2d 79 (1987). Furthermore, where a grantee has knowingly participated in a fraudulent conveyance, a defrauded creditor may have recourse directly against the grantee to the extent of the value of the property conveyed. See Deyong Management, supra, MCL 566.19(1); MSA 26.889(1), and MCL 566.21; MSA 26.891. We remand the case for further findings regarding Claude Carrigan’s liability under the Uniform Fraudulent Conveyance Act. Again, additional testimony may be taken. The trial court also determined that Claude Carrigan violated §551 of the Business Corporation Act, MCL 450.1551; MSA 21.200(551). Mr. Carrigan first argues that he cannot be held individually liable as a director because plaintiffs pleadings did not name him as a defendant in this capacity. Mr. Carrigan has abandoned this issue because of his failure to identify any relevant authority in support of his argument, and we will not review it. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 129-130; 463 NW2d 442 (1990). We agree with Mr. Carrigan, however, that his liability cannot be predicated on the violation of § 551 found by the trial court. The trial court held that Mr. Carrigan had violated MCL 450.1551(l)(c); MSA 21.200(551)(l)(c), which at times relevant to this action provided: (1) In addition to any other liability imposed by this act or other law upon directors of a corporation, directors who vote for, or concur in, any of the following corporate actions are jointly and severally liable to the corporation for the benefit of its creditors or shareholders, to the extent of any legally recoverable injury suffered by such persons as a result of the action but not to exceed the amount unlawfully paid or distributed: (c) Distribution of assets to shareholders during or after dissolution of the corporation without paying, or adequately providing for, all known debts, obligations and liabilities of the corporation. At the time of the conveyances, however, the corporation was not undergoing dissolution. MCL 450.1551(l)(c); MSA 21.200(551)(l)(c) is thus inapplicable to the facts before us. It is certainly possible that Mr. Carrigan may be held personally liable to plaintiff under some other section of the Business Corporation Act. For example, it appears that Mr. Carrigan usurped a corporate opportunity by his conveyance of the Silver Lake property to his South Carolina corporation through a straw-man. Although plaintiff had raised this issue below, no express findings were made by the trial court with regard to this transaction. Mr. Carrigan’s liability may not, however, be founded on a violation of MCL 450.1551(l)(c); MSA 21.200(551)(1) (c). The trial court’s ruling to the contrary was erroneous. Defendants’ remaining issues are not properly before us. Defendants’ extended discussion of their liability under § 4 of the Uniform Fraudulent Conveyance Act, MCL 566.14; MSA 26.884, is irrelevant, because the trial court did not find defendants liable under this section. Because the judgment was not rendered against the corporation, the individual defendants’ discussion of the corporation’s liability is irrelevant. By their failure to identify relevant authority on appeal, defendants have abandoned the issue whether the trial court erred in allowing into evidence testimony concerning conveyances that had not been pleaded in the complaint. Ward, supra. Defendants’ argument that the corporation had a right to prefer the Carrigans as creditors over plaintiff as a judgment creditor is not properly before us because of the absence of a finding concerning the Carrigans’ alleged status as creditors, an issue that was disputed below. Justus v Swope, 184 Mich App 91, 100; 457 NW2d 103 (1990); Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672, 685; 423 NW2d 311 (1988). The judgment is reversed insofar as it pertains to both Claude and Billie Carrigan’s liability under the Business Corporation Act. The case is remanded to the trial court so that additional findings of fact may be made as requested by this opinion. We retain jurisdiction. Reversed in part and remanded. Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such purchaser; (a) Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or (b) Disregard the conveyance and attach or levy execution upon the property conveyed. In any case not provided for in this act, the rules of law and equity including the law merchant, and in particular the rules relating to the law of principal and agent, and the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy or other invalidating cause shall govern.	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Per Curiam. Defendant appeals as of right his January 5, 1990, jury conviction and January 16, 1990, sentence for carrying a concealed weapon, MCL 750.227; MSA 28.424. Recorder’s Court Judge Warfield Moore, Jr., sentenced him to eighteen months to five years in prison. The guideline sentence range was zero to twelve months. Defendant raises issues of improper judicial comments, improper denial of a motion for mistrial, lack of due diligence in obtaining a witness, and abuse of discretion in sentencing. We reverse. We are again confronted with issues of judicial misconduct related to Judge Warfield Moore. The relevant portions of Canon 3 of the Michigan Code of Judicial Conduct relating to the issues in the present case are as follows: A. Adjudicative Responsibilities: (8) A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto. Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone. He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment. In addition, Canon 2 of the Code of Judicial Conduct provides: B. A judge should respect and observe the law and should conduct himself at all times in a man ner that promotes public confidence in the integrity and impartiality of the judiciary. The record is replete with instances of highly questionable judicial conduct during the course of this trial. However, our opinion will focus primarily on those instances that have jeopardized the defendant’s opportunity for a fair trial. Judge Moore was clearly "not the neutral and detached magistrate of justice that any defendant is entitled to expect in a criminal trial.” People v Moore, 161 Mich App 615, 619; 411 NW2d 797 (1987). i In the present case, defendant argues that the judge denied him a fair trial by repeatedly interjecting improper and impartial comments and questions. We agree. Judge Moore’s conduct in questioning witnesses and jurors constituted an abandonment of his mantle of judicial impartiality and denied defendant a fair trial. Defendant claims the judge unjustifiably aroused suspicions in the mind of the jury with respect to the credibility of a witness and through his comments connected the defendant to conduct of which he expressed disapproval. In questioning a witness about the timing of his preliminary hearing testimony, Judge Moore volunteered: The Court: Before Thanksgiving, right? I mean you don’t go to court everyday? When the defense attorney later objected to the relevance of the prosecutor’s question whether the witness called the police to offer a statement about the incident involving defendant, the judge responded: The Court: It has to do with him, when he first indicated to anybody that this man had not in his vision or from what he saw, committed a crime. That’s all. It just has to do with when he first told it. That’s all. And that’s relevant for the jury to determine if there’s credibility and weight to give to his testimony today. Judge Moore commented numerous times during voir dire and trial that guns are a "terrible thing in society.” He then instructed the jury regarding the presumption of innocence and proceeded to ask what their verdict would be before trial. Although the judge was attempting to inform the jury that before any evidence was presented they must presume defendant’s innocence, it was clear from the record that many jurors felt intimidated and did not understand what he was doing: The Court: Mr. Conyers, as he sits here now, is presumptively innocent. What do we mean by that? Am I saying he is not guilty of this? No. I am certainly not saying that. As a matter of fact, I will never tell you that. That will not be my responsibility. My responsibility is to tell you what the law is, to instruct you, to see that the trial is had fairly and properly and efficiently. And it will be for you to decide, based on the evidence, that you hear, and the facts that you determine from that evidence, as to whether you believe that there is sufficient evidence to prove beyond a reasonable doubt that this man is guilty. But the defendant is clothed with the presumption of innocence. Now, its no sense in us sitting here and talking about presumptions, because everyday of our lives, and especially at this time of the year, when everyone is summarizing how many people have died from gun shot wounds in Detroit and everywhere else, guns are a big issue in our society. It seems that everyday somebody — something happens with somebody relative to a gun. And so, we know there are many guns in the community. And we know, in truth, that people carry those guns because you have to have it in order that all of these things happen. And why am I saying that to you? Because it may be, ladies and gentlemen, because the defendant is charged with this crime, that some of you say, well, I cannot presume him to be innocent. I know I haven’t heard any evidence of his guilt, but because of the proliferation of guns in our community and because of all of the activity therewith, I cannot, in honesty, say as I look at Mr. Conyers, that I presume him to be innocent. The Court: Miss Allen, if for some reason, however, if I told you under oath, gave you a[n] oath and told you to go in and make a decision in connection with this matter and you heard no witnesses, right now, based on what I have told you and what has been said here so far, if I ask you to go in the jury room along with these eleven other persons and to render a verdict, what would your verdict be now, based on the presumption of innocence, burden of proof, and reasonable doubt? What would your verdict be right now? Prospective Juror Number Seven: I would want justice done. The Court: Yes, ma’am. I love to hear that. What is your verdict, guilty or not guilty? In criminal cases we don’t have any verdict about justice done. We have a verdict of guilty or not guilty. See, folks, I want you to get used to that. You can’t say anything else but guilty or not guilty in [a] criminal case. Did somebody — it’s guilty or not guilty. What is your verdict, guilty or not guilty, if you had to go in there based on having heard no one talk but me? Prospective Juror Number Seven: From the way you talked, I would have a doubt that he would be. The Court: What would your verdict be? Prospective Juror Number Seven: I think I would say, guilty. The Court: What about that, Mr. McCoy. Prospective Juror Number Seven: I feel justice should be done. Prospective Juror Number Twelve: The same, guilty. The Court: Guilty, is that right? What about that Miss Bobbit, guilty or I don’t know? Prospective Juror Number Eight: I don’t know. The Court: What about that Miss Smith, what would your verdict be? Prospective Juror Number Four: I don’t know. The Court: What about that Miss Cooper, our personality person? The Court: How could you find him guilty? Prospective Juror Number Twelve: I am going on looks. The Court: Looks? Because he is young and black? Prospective Juror Number Twelve: No. The Court: Mustache or striped shirt? I mean, I’m serious. What do you see about him that makes him look guilty? Do you know what, mister? He looks enough like you to be a relative of yours. Same complexion. Same skin tone. Same mustache. I swear. To me, he looks enough like Mr. McCoy that he could be a relative of his. What do you see about him that makes you think he is guilty of anything? Prospective Juror Number Twelve: A feeling I have. The Court: I mean, he has not projected it. Well, you think there is a smugness about him? Prospective Juror Number Twelve: Right. The Court: Pardon? I can’t hear you, ma’am. Would you mind speaking up. I know you are shaking. I don’t know if you are shaking because you are scared or what. You are a secretary for the South End. Speak to us, ma’am. Do you have any reason to believe that this man — or that any crime was committed? Have you heard any evidence of that, ma’am? Prospective Juror Number Four: No. The Court: I don’t know how to explain it. You, now, based on what we have explained, would find the defendant not guilty — who of you would do that, would you raise your hand? Miss Bobbit, you still don’t know? Prospectivé Juror Number Eight: No. The Court: Why don’t you know, Miss Bobbit, right now, based on what you have heard? Prospective Juror Number Eight: Well .... The Court: I can’t hear you, ma’am. Would you mind shouting a little bit? Prospective Juror Number Eight: I don’t know. The Court: You don’t know. But you think you might find him not guilty? Your name is Sheldon Taps. How are you? Sheldon Taps was a client of mine twenty years ago. I haven’t seen him since. I hope that’s why you came in, to see me because you remember me as your attorney. He looks just like that except twenty years younger twenty years ago. But any way, Miss Bobbit, you still don’t know why you would find — why you can’t find him not guilty? You just don’t know. You just have a bad feeling, is that right? Prospective Juror Number Eight: Right. After inviting the attorneys to ask the jurors anything they would like, the following exchange occurred: Mr. Handy [defense counsel]: That there is a right for a person who has been accused of a crime to have the presumption of innocence around him. It’s like a [sic] umbrella. It’s like . . . The Court: They understand what it is. Don’t you all understand what the presumption of innocence is? He is presumed to be innocent. Mr. Handy: I am trying to make sure. The Court: They say if they hear anymore, they may go back. They understand, Mr. Handy. Let’s get to something they don’t understand. The Court: A police officer is a person who is hired to do his work, like Mr. Handy is hired to do his work and I do mine. Thank you. I am elected by you and I am running again this year. Mr. Handy: But, your Honor . . . The Court: And Mr. Handy even helped me in my campaign initially. But you think because of that there is any reason why you can’t be mistaken or that you are infallible and to ask him about what his officers do and what they don’t do and all of that, it’s beyond the scope .... Later, when a police officer was being cross-examined, the following exchange occurred: Q. One moment. You say that an officer chased somebody else through the house. However, from the time that you got out of your plain clothes car (sic) you directed your total attention toward my client and then chased him only, correct? The Court: But you asked him . . . The Witness: No, sir. The Court: He responded to the question that you asked, Mr. Handy. You asked him, did anybody else go in the house? And he is telling you that he has the impression that somebody else went in under these circumstances. Since you asked him the question, he gave you an answer. Now, you want to ask him, how do you know that? He said, I just have a sense of that. That’s all. I didn’t see it. I didn’t watch it or whatever. But I have the impression that my partner or uniformed officer, chased somebody into the house. Now you want to argue with him. The attorney then requested that the judge allow him to pose questions regarding the witness’ personal knowledge, and not just impressions, and reminded the judge that the judge had instructed the jury with regard to testimony. As the defense attorney continued cross-examination, the court again intervened: Q. Was he running as fast as he could as far as you could tell? The Court: How could he tell that? Mr. Handy: I was just asking, your Honor. The Court: How could he tell that? That’s pure speculation. How fast — we have to get him out and and [sic] see if he is on steroids to know how fast he can run. How fast does he know your client can run? Q. Was he running faster than you? The Court: Apparently not. He caught him. Mr. Handy: Your honor, please. The Court: It’s a silly question, counsel. In the present case, excessive interference in the examination of witnesses, repeated rebukes and disparaging remarks directed at defendant’s counsel, and marked impatience in the presence of the jury displayed an attitude of partisanship, which resulted in the denial of a fair trial. See People v London, 40 Mich App 124, 127; 198 NW2d 723 (1972); United States v Coke, 339 F2d 183, 185 (CA 2, 1964). Defense counsel also was not treated with the consideration due an officer of the court. People v Wigfall, 160 Mich App 765, 775; 408 NW2d 551 (1987). The trial court may question witnesses in order to clarify testimony or elicit additional relevant information. MRE 614(b); People v Sterling, 154 Mich App 223, 228; 397 NW2d 182 (1986); People v Pawelczak, 125 Mich App 231, 236; 336 NW2d 453 (1983). However, the trial court must exercise caution and restraint to ensure that its questions are not intimidating, argumentative, prejudicial, unfair, or partial. Sterling, supra; People v Cole, 349 Mich 175; 84 NW2d 711 (1957); People v Jackson, 97 Mich App 660, 662; 296 NW2d 135 (1980). The test is whether the "judge’s questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury’ as to a witness’ credibility, . . . and whether partiality 'quite possibly could have influenced the jury to the detriment of defendant’s case.’ ” Sterling, supra, quoting People v Redfern, 71 Mich App 452, 457; 248 NW2d 582 (1976), citing People v Smith, 64 Mich App 263, 267; 235 NW2d 754 (1975) (emphasis in original). There is no question that Judge Moore crossed the line of impartiality when he instructed the prospective jurors that although defendant was presumed innocent, he would never tell them the defendant was not guilty. Again, it appears that Judge Moore was attempting to explain to the jury that he was not the factfinder. However, by stating that he would not say defendant is not guilty without explaining that he also would not say defendant is guilty, he presented bias that was readily apparent to at least one juror. Judge Moore’s explanation of the presumption of innocence was very confusing, and his intimidation of the jurors and the attorneys appeared on the record to be almost intentional. His comments about the problem with guns seemed to invite the jurors to convict the defendant as part of their civic duty. His repeated comments about the expected length of the trial could have led jurors to the conclusion that this was an open-and-shut case. However, he did try to balance the comments by explaining that the trial would be short because it was not a complicated case. He later told the jury that he would see them at two o’clock and hoped for a verdict by three o’clock. At the trial, the judge not only became a commentator and interpreter of the witness’ testimony, but he also volunteered information that was not in evidence. His campaigning from the bench also had the appearance of showing the jury that he was "tough on crime” and that he wasn’t the one wasting the jury’s time in a trial of an obviously guilty defendant. His ruling that a witness need not be called, and that the witness’ testimony would probably be exculpatory anyway, demonstrated bias. Judge Moore’s attitude toward the defendant is aptly summarized by his comment, "He can go pee in the cup in the lock up.” For these reasons alone reversal is required. ii Because of our ruling with regard to the first issue, we find it unnecessary to discuss defendant’s other grounds for reversal. However, it is quite clear that had we not reversed on the basis of the first issue, we would have on the basis of at least one of the other issues for the same reasons mentioned previously. The instances of impropriety were too numerous to count, too pervasive to find harmless, and too prejudicial to tolerate. We would seriously caution the trial judge to limit his comments to those that are appropriate to the administration of justice. Defendant’s conviction is reversed, sentence is vacated, and the case is remanded for a new trial before a different judge of the Detroit Recorder’s Court. Reversed and remanded. This is at least the fifth time we have had to reverse on similar grounds jury convictions obtained in Judge Warfield Moore’s court. See People v Moore, 161 Mich App 615; 411 NW2d 797 (1987); People v Sterling, 154 Mich App 223; 397 NW2d 182 (1986); People v Audison, 126 Mich App 829; 338 NW2d 235 (1983); People v Hudgins, 125 Mich App 140; 336 NW2d 241 (1983). This comment was one of the few that were not heard by the jury.	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Connor, J. Plaintiffs appeal as of right in Docket No. 129864 from the trial court’s May 21, 1990, order granting defendants summary disposition. Defendants also have appealed in Docket No. 131543 from the trial court’s July 30, 1990, order denying their request for costs, sanctions, and attorney fees. We reverse the trial court’s grant of summary disposition and remand this matter to the trial court for additional proceedings. Originally, defendants had sued plaintiffs Victor Triplett and Trinity Chemical Company for injuries defendant Patricia St. Amour allegedly received in a motor vehicle accident on February 26, 1986. The parties reached an agreement to settle all claims against plaintiffs for $20,000. Plaintiff Federated Mutual Insurance Company had provided insurance and participated in the defense of the action against the plaintiffs. On May 3, 1988, the Cheboygan Circuit Court, pursuant to the parties’ stipulation, entered an order dismissing the case with prejudice. Sometime after the original case was dismissed, plaintiffs claimed to have newly discovered that before the automobile accident involving plaintiffs, Patricia St. Amour had suffered an injury to her arm for which she received treatment on January 29, 1986. During the course of discovery and settlement negotiations, plaintiffs alleged that defen dants had denied that Patricia St. Amour had suffered any previous arm injuries. Plaintiffs apparently learned of the prior treatment when defendants sued the treating physician for disclosing information about defendant Patricia St. Amour’s treatment and injury. Plaintiffs sued defendants in the Kalkaska Circuit Court, alleging fraud related to the settlement agreement on the basis of undisclosed information about Patricia St. Amour’s medical condition. Plaintiffs’ second amended complaint included allegations of fraud in tort and did not request recision of the settlement agreement or the order of dismissal. Plaintiffs also requested damages for the cost of defending in the prior action. The trial court granted summary disposition for defendants, MCR 2.116(C)(8), and dismissed this action for failure to state a claim upon which relief could be granted. The lower court held that plaintiffs’ case involved intrinsic fraud, and therefore the remedy was not to bring an independent action but rather to seek relief from the prior order entered pursuant to the settlement agreement, MCR 2.612(C)(1). The trial court did not believe that these facts would support an independent cause of action, either at law or in equity. We disagree. A motion under MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, is designed to test the legal sufficiency of a claim by the pleadings alone. All factual allegations, and any fair inferences drawn therefrom, in support of the claim are accepted as true. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Kassab v Michigan Basic Property Ins Ass’n, 185 Mich App 206, 212-213; 460 NW2d 300 (1990), lv gtd 439 Mich 864 (1991). We conclude from our review of the second amended complaint that plaintiffs were seeking damages that flowed from the execution of the settlement agreement with defendants, as well as costs associated with defending in the original case. Plaintiffs were not seeking to set aside the settlement with defendants, but were alleging an action at law for fraud. The trial court believed, on the basis of Rogoski v Muskegon, 107 Mich App 730; 309 NW2d 718 (1981), that a new action for fraud could not be brought in this case because the prior action was a bar under either res judicata or collateral estoppel. Consequently, plaintiffs’ only remedy was to move for relief from the order of dismissal in the Cheboygan Circuit Court in accordance with MCR 2.612(C)(1). The trial court also believed an independent action in equity for relief from the order of dismissal and the settlement agreement could not be maintained under MCR 2.612(C)(3) because this case did not involve extrinsic fraud. We believe the trial court erred. The holding in Rogoski was distinguished by the panel in Courtney v Feldstein, 147 Mich App 70; 382 NW2d 734 (1985). In Courtney, p 73, the plaintiff filed a separate action for fraud against her former husband, alleging that the husband induced the plaintiff to enter into an unfavorable property settlement by fraudulently concealing the value of his interests in two corporations during the divorce action. The majority panel in Courtney held that the plaintiff could maintain an independent action for fraud and was not barred by the doctrine of res judicata. The opinion quoted from 37 Am Jur 2d, Fraud and Deceit, § 488, p 676, as follows: "It has been held that a judgment or decree entered in accordance with the settlement of a claim does not bar an action for damages resulting from fraud where the wrongdoer fraudulently conceals his wrong from the injured person, who agrees, in ignorance of the wrong, to the settlement and entry of the judgment or decree. ” Although neither the parties nor the trial court fully addressed this issue because the parties failed to cite Courtney, we believe that by ruling that plaintiffs could not file a separate action for fraud, but had to seek relief from their previous settlement in the prior action only, the trial court held, in effect, that an independent action for fraud was barred by the doctrine of res judicata or collateral estoppel because of the prior action. We do not believe the fact that this action involves a previous case limits plaintiffs’ remedies to merely setting aside the previous order of dismissal. Plaintiffs do not want to simply avoid the prior release, such as an injured party may want to do in order not to be barred from filing suit. See Style v Greenslade, 364 Mich 679, 680-681; 112 NW2d 92 (1961). Rather, plaintiffs are seeking a remedy in tort for fraud in association with the former lawsuit. As the panel in Courtney pointed out, the fact that the lawsuit was used as a means to obtain an allegedly fraudulently induced settlement does not act as a bar to a separate action for fraud. Res judicata will not bar such an action because the fraud is not a basis of the previous decision. Consequently, under the limited standard of review for motions under MCR 2.116(C)(8), we believe the trial court erroneously granted summary disposition in this case. In light of our conclusion that summary disposition should not have been granted, we need not address the merits of plaintiffs’ issue concerning amendment of their complaint. Likewise, the issues defendants have raised in Docket No. 131543, concerning the trial court’s decision to deny costs, sanctions, and attorney fees for improper venue and frivolous pleadings need not be reached at this time. Because the trial court never addressed the issue of venue and we believe the decision to grant summary disposition was wrong, we do not believe at this time defendants have any basis for seeking sanctions for frivolous pleadings. Affirmed in part, reversed in part, and remanded for additional proceedings. We do not retain jurisdiction. Ross v Preston, 292 NY 433; 55 NE2d 490 (1944) (the court saying that in such a case the entry of a judgment is merely an incident of the fraud which has been perpetrated outside the action, and the reason that the judgment settling the claim does not preclude proof of the antecedent fraud is that the trial and judgment are only a step in the consummation of the antecedent fraud), reh den 293 NY 664; 56 NE2d 258 (1944); Gould v Cayuga Co Bank, 99 NY 333; 2 NE 16 (1885); Verplanck v Van Buren, 76 NY 247 (1879).”	[ -72, -5, -33, 33, -1, 6, -27, -19, -8, 10, -24, -23, 37, 51, 4, 2, -18, -55, 20, -34, -55, -36, -19, 23, 24, -54, 26, -28, 38, 28, 10, 11, -24, -40, -11, -38, 7, 50, -29, 15, -3, -9, 19, -19, -45, 9, 11, 0, 50, -3, 61, -6, -31, 7, -16, -5, 15, -9, 17, -6, -32, 6, 4, 8, 14, 4, 32, 12, -9, -7, -17, 2, -17, -18, -10, -2, -6, -22, 2, 1, 40, -4, 46, -22, -30, 26, -36, -21, 7, 8, 10, 4, -41, -27, 17, 0, 36, -9, 32, 12, 18, -10, 13, 43, 11, 49, 39, -75, 9, -12, -25, 29, 44, -21, 24, -34, -6, -3, 15, 47, -9, -9, 47, -34, 36, 20, 26, -23, 6, 57, 9, -16, 7, 26, 11, -36, -16, -26, 6, 4, -4, -11, -7, -11, 25, 52, -14, -83, 6, 2, -15, 36, 0, 73, 39, -13, -28, -26, 22, -8, 25, 21, 11, -10, -33, -56, 30, 18, 28, -22, 46, -41, -26, -1, 13, 0, 70, 0, -58, 37, 9, 38, 4, 22, -11, -79, -3, 8, -24, 11, 39, -40, -49, 37, -4, 0, 22, 10, 19, -9, 6, -74, 5, -39, 23, 8, 80, -45, 68, 11, -25, -4, -6, -43, 0, -17, 54, -54, -27, -47, -26, 6, 18, 0, -48, 9, 3, -5, -12, -9, 19, 43, 4, 64, -37, 11, 13, 2, 51, -6, 15, 8, -11, -52, -34, 55, -50, -30, -13, -20, 33, 7, -22, 7, -15, -46, 30, 24, -57, 45, 0, 32, -41, 7, -6, 8, -25, 26, -2, -24, -8, -18, 26, -23, -2, -49, 4, 10, -9, 71, 57, -7, -2, -18, -16, 11, 23, 5, 19, 16, 0, 13, -44, -56, 26, 1, -19, -79, -29, -18, -28, -15, -15, 19, -12, -17, 1, 29, -7, -16, 8, 15, 10, -29, 2, -23, 3, 14, 34, -23, 15, 30, -23, -34, -19, -36, 3, -45, -23, 6, -46, 31, -20, -27, -32, -38, -51, 37, 57, -20, 25, -7, -22, -47, -35, -7, 64, -22, 4, -2, -19, -11, 15, 2, -21, -22, 56, -5, -30, 41, 20, -3, -9, -49, 33, 4, 17, 11, 0, 79, -71, -6, 17, -25, -30, -75, -27, 28, -38, 43, -7, -1, 40, 14, 16, -36, -70, -20, -3, 27, -17, 1, 17, 16, 35, 14, -29, 19, -38, 0, 70, 5, 43, 17, -81, -1, 41, -48, 14, 12, -29, -46, 7, -19, -24, -15, 4, -10, 56, -30, 61, 17, 8, -48, 45, 1, 16, -15, -13, -24, -11, 56, -9, -24, 20, 41, -53, -5, -16, -35, 13, -8, 0, -7, 4, -14, 3, -22, 33, 28, 3, 35, 26, -1, -51, -6, -8, -21, 10, -47, -8, -41, -5, 11, 16, -13, -2, 11, -5, 8, 27, 36, 4, 29, -9, 29, 20, -6, -17, 1, -3, 4, 21, -21, -14, 5, 8, 30, -37, -22, 14, -30, 2, 37, -54, 0, -22, 21, -40, -47, -13, -80, -25, 11, 80, 22, -45, -25, -18, -10, -29, 21, 36, -23, -23, -9, -6, 0, -4, 34, -10, 34, -8, -14, -28, -42, 17, -16, 26, 1, 48, 3, 31, -44, 41, 26, -5, -19, -1, 12, 17, 36, -6, 1, 28, -44, 10, 20, 31, 11, -43, -40, 61, 33, 2, 7, 23, -39, -15, -27, 7, -3, -6, 33, 34, -19, 6, -30, 19, -16, -21, 21, 14, 21, -7, 62, -28, 0, -41, 28, -19, 37, -17, -25, -21, -53, 59, 0, -19, -32, 6, -15, 18, 55, 22, -6, -15, -8, 8, -11, 9, 3, -39, -9, 0, 16, -8, 26, 33, -12, 12, -7, -22, -34, -4, -62, 22, 17, 29, 8, -4, 4, 43, 23, -29, 0, -18, -15, -13, -14, 51, -14, 10, 6, 15, 21, -71, 75, -26, -15, -50, 13, 41, 6, -22, -27, 25, 9, -38, 0, -70, 33, -5, -7, -37, -1, -10, 26, -65, -10, 0, 20, -11, -28, -1, -19, 38, -58, 13, 12, 16, 11, 46, 14, 24, -59, -15, 7, -28, 56, -20, 0, 18, 8, -32, 4, -23, 19, 31, -6, -29, 43, -65, -24, -10, -26, 3, 24, 5, -36, 1, 24, 6, 6, -15, -2, 3, 28, -5, 34, -28, -10, 16, -37, 18, 24, -28, 40, 22, -61, -17, -19, 47, -5, -12, 6, 53, -23, 4, -3, 3, 52, 16, 33, -1, -1, -22, 11, -18, 7, 3, -7, 32, -8, 4, 30, -29, 41, 42, -20, -28, -9, -15, 17, -10, -22, 28, -27, -6, -19, 35, -5, 8, -27, -2, -47, 41, 24, -2, -5, -26, 0, -12, -25, -43, 18, 32, -14, -15, -47, 29, 13, 13, 18, -18, -40, 43, -56, 11, 0, -25, 12, 4, -58, -14, 17, 14, 3, 27, 0, -2, 40, -8, 16, -20, 17, -41, 7, 16, 21, -38, -27, -11, 35, 13, 15, -27, -17, 14, 6, -36, 4, -20, 52, -31, -16, 17, -24, -10, -14, -4, -19, -9, 20, 5, 16, 15, -50, -51, 4, 13, -19, -61, 21, 59, 5, 42, -1, 10, -12, -17, -57, 37, 40, 11, -22, -52, -5, -8, 12, 50, 4, -32, -15, -15, 47, 26, -37, 10, 11, 8, 17, -67, 23, 10, 24, 6, -9, 73, -83, -5, -17, -51, 10, -32, -14, 33, -5, -67, 20, 27, 25, 13, -19, -12, -3, 0, 2, 26, -22, 21, 21, -9, 32, 0, -3, -20, 28, -7, 14, -16, -29, 39, -7, -6, -31, 35, -18, -28, 80, 16, 16, 16, -6, -57, -1, 15, 55, -7, 13, 18, 34, 11, 21, 42, -24, -2, -43, -38, 32, 11, 18, 16, 1, -19, -62, 28, 11, 23, 76, 18, -54, 25, 37, -33, 30, 48, -28, -12, 26, 18, 31, -32, 21, 24, -10, -8, 2, -8, 8, -5, -24, -52, -40, -37, -77, 25, 1, -19, 13, -1, -32, -18, 14, 6, -8, -36, 4, -56, 7, 7, -25, 43, -4, 27, -39, 29, 4, -7, -21, -22, 36, 60, 3, 25, 24, 78, 10, 39, 30, 3, 20, 25, 7, 0, 34, -7, -32, 19, 11, 31, 45, 70, 22 ]
Per Curiam. The people appeal as of right from an August 28, 1990, order dismissing the information charging defendant with second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). We reverse. Pursuant to a plea agreement, defendant attempted to plead guilty of fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5). During the plea procedure, defendant mentioned his attempt to obtain counseling regarding the sexual conduct underlying the charge. Defense counsel explained that the abuse was reported by the counseling agency pursuant to the Child Protection Law, MCL 722.623; MSA 25.248(3), and that defendant was arrested shortly after the report was made. The trial court adjourned the proceeding, noting it believed there was a recent case on point and requesting the parties to apprise the court of it. Thereafter, defendant filed a motion to dismiss based on People v Farrow, 183 Mich App 436; 455 NW2d 325 (1990), the case referred to by the trial court. In Farrow, a panel of this Court held that under facts similar to those presented here — an investigation into the defendant’s criminal sexual conduct instigated after the defendant sought counseling and was informed that his treatment would remain confidential — sufficient state action was involved to support the defendant’s due process claim. Farrow challenged his prosecution, alleging confidential information had been illegally disclosed and that the use of that information against him violated public policy and his right to due process of law. The trial court granted defendant Farrow’s motion to dismiss, determining prosecution would frustrate the purpose of the Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq., and would violate the principles of fundamental fairness upon which the right to due process rests. The prosecution appealed the dismissal but limited its argument to a claim that due process was improperly invoked because no state action was involved. This Court rejected the prosecution’s argument concerning state action and, noting the prosecution’s failure to challenge the trial court’s due process analysis, affirmed the dismissal of the charges against Farrow. The trial court in this case, relying on the opinions of both the lower court, and this Court in Farrow, granted defendant’s motion to dismiss. The prosecution now appeals, claiming fundamental fairness does not require that a defendant who initiates counseling and receives false assurances of confidentiality be granted complete immunity from prosecution where the investigation into the defendant’s conduct stems from information divulged during counseling and later reported pursuant to MCL 722.623; MSA 25.248(3). We agree. As previously noted, this Court in Farrow did not address that portion of the lower court’s deci sion dealing with the broad notion that a due process violation may be premised on a generalized idea of fair play without regard to the more specific questions involved in due-process analysis such as whether there were any procedural defects or arbitrary or unreasonable state action. A review of the lower court opinion in Farrow reveals an analysis that, when stripped to its essentials, consists of nothing more than the well-known proposition that the state must deal fairly with a defendant and the lower court’s apparent but unstated and unexplained conclusion that Farrow was not treated fairly. A proper analysis of the issue must begin with the identification and examination of the conduct on which defendant bases his due process claim. Although defendant provided the lower court little information and argument in support of his motion, we will assume, because both defendant and the lower court relied exclusively on the Farrow case, that the basis of defendant’s complaint, like that of Farrow’s, arises from the reporting of what was believed to be confidential information by the counseling agency. In short, defendant and the trial court find "unfair” the fact that on the basis of "confidential” information voluntarily provided by the defendant to the counselor, the agency filed a report with the Department of Social Services indicating defendant was suspected of abusing his stepdaughter. Thus, in effect, defendant is challenging the mandatory reporting requirement set forth in § 3 of the Child Protection Law on grounds that the reporting is generally "unfair” when a defendant voluntarily seeks help and is contrary to public policy because it will dissuade persons such as defendant from seeking help and thus hinder the discovery and removal of children from homes where they are abused. This argument overlooks the fact that public policy issues are best addressed by the Legislature. Given enactment of the reporting requirement, as well as the section abrogating any legally recognized privileged communications except those between attorney and client, MCL 722.631; MSA 25.248(11), it appears the Legislature found the public policy arguments, supporting general detention, and thus likely prosecution, MCL 722.623; MSA 25.248(3), more compelling than those promoting self-reporting and self-sought treatment. Additionally, this Court has already upheld the validity of the statute’s reporting requirement in the face of various constitutional challenges. People v Cavaiani, 172 Mich App 706; 432 NW2d 409 (1988). The validity of the reporting requirement and the concomitant abrogation of the privilege applicable to the communications at issue here already having been settled, the only area remaining for complaint by defendant is that the counseling agency failed to inform him of its duty to report under the statute and thus improperly assured him that his treatment would remain confidential. Thus, defendant is claiming he was harmed by the counselor and agency’s handling of their obligation to report under the statute. Although we agree that the agency erred in failing to inform defendant of its duty to report suspected child abuse when specifically questioned by defendant regarding the confidentiality of his treatment, we do not find any support for defendant’s proposed remedy — immunity from prosecution for criminal acts of sexual abuse committed against his stepdaughter. Because defendant’s complaint arises from the mishandling of the reporting requirements of the statute, we look to the statute itself to determine defendant’s remedy. It appears the Legislature anticipated that problems would arise both with those reporting and those being reported under the statute. Thus, in § 5, the Legislature set forth the parameters of the reporting person’s liability arising from acts done pursuant to the statute. Defendant must find his remedy therein. We find no support for the trial court’s holding defendant absolutely immune from prosecution on the basis of some generalized notion of fairness. There was no egregious conduct. The information reported was neither coerced nor solicited from defendant, but was given voluntarily. Dismissal of the information charging defendant was improper. We note, however, that a separate analysis must be applied when addressing whether any statements made by defendant to the counselor are admissible at defendant’s criminal trial. Section 11 abrogates all legally privileged communications only with regard to child protective proceedings and does not otherwise affect privileges with regard to criminal proceedings. Moreover, use of defendant’s statements as evidence against him in a criminal prosecution under the facts presented herein may well provide a better basis for defendant’s generalized due process claim. We decline to fully address this issue because the trial court’s premature dismissal of the case prevented the case from proceeding to that point. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.	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Per Curiam. Defendant pled guilty to a charge of assault with intent to rob being armed, MCLA 750-.89; MSA 28.284. Prior to sentencing the defendant moved to withdraw his plea. The trial court denied the motion and we reverse. While a motion to withdraw a guilty plea is addressed to the trial court’s discretion, that discretion should be exercised liberally when the motion is made before sentencing and is accompanied by an assertion of innocence. People v Bencheck, 360 Mich 430 (1960); People v Henley, 36 Mich App 672 (1971). In this case the defendant’s motion was made before sentencing and he did assert his innocence. In addition, the record shows that while the defendant was questioned in some detail on a number of things the defendant,, himself, never pled guilty. The plea was entered by his attorney. Under GCR 1963, 785.3, and MCLA 768.35; MSA 28.1058, it is the defendant who must plead. See People v Barrows, 358 Mich 267 (1959); People v Head, 31 Mich App 491 (1971). The transcript of the arraignment and the plea also contain several statements by the defendant that could be construed as protestations of innocence. See People v Merhige, 212 Mich 601 (1920). Reversed and remanded.	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Memorandum Opinion. Defendant pled guilty to the charge of breaking and entering, was sentenced to a term of not less than four nor more than ten years, and now appeals. An examination of the record and brief discloses no error. Affirmed. MCLA 750.110; MSA 28.305.	[ 29, 17, 11, -24, -65, 0, -31, 25, -29, 45, -16, 54, -43, -24, 3, -40, 32, 28, 10, 7, 40, -13, 7, 88, -16, -14, 20, 70, -26, 15, 44, 1, 22, -61, -11, -37, 14, 23, 36, 57, 34, -10, 5, 14, -57, -31, -10, 13, 17, 15, 63, -18, 25, -28, 10, 20, -22, 20, 26, 33, 30, 39, -33, 23, 14, 4, 21, 11, -20, -72, 15, -26, -7, 7, -31, 39, 49, 55, -44, 19, -30, -24, 17, 2, 34, -58, 2, -38, 5, -46, 10, 22, 32, -34, -5, -38, -53, -39, 46, -45, -79, -44, -33, 33, 5, 28, -53, -20, -44, -20, -16, 19, 27, -26, -12, 8, -32, 79, 25, -51, 23, 54, 43, 5, 24, -65, -4, -33, 11, -22, -39, 25, -16, -36, -5, 0, 19, 15, 21, 16, -12, 18, 52, 44, 7, 14, -14, -33, 33, 23, -23, 10, -53, 15, 44, 15, -51, -17, -46, -46, -13, 8, -13, -43, 53, -36, -16, 7, 20, -7, 6, -8, 47, 4, 14, -12, -13, 30, -9, 17, -19, 19, -10, 13, -21, 6, 1, 15, -90, -77, -24, 51, -2, -49, 12, -25, -6, 68, 17, -13, -66, -10, 51, -5, 28, -58, -22, 5, -32, -25, 33, -16, -22, -9, -10, 4, 34, -9, -16, 63, -77, -38, -52, -63, 6, 12, 15, 20, 11, -19, -8, -10, 33, -16, 17, 48, -16, -22, 75, 16, -38, -2, 14, -1, 68, 12, -20, 2, -36, -41, 30, 31, -26, 4, -14, 12, 53, -6, -26, 54, -38, -19, 1, 10, -74, 32, 16, -18, -54, 36, 29, 6, 7, 33, 2, 37, -50, 18, -13, -59, 61, 3, 32, 8, -22, 6, 1, 59, 18, -42, 5, -10, -48, -9, 47, -23, -40, 1, -86, -3, -16, -21, -32, -23, 30, -8, 66, 5, -28, -3, 33, 27, -7, 33, -19, -12, 0, 12, 3, 12, -48, 12, 26, -11, -12, -45, 60, -31, 11, -18, 10, -10, -10, 0, 25, 76, 38, -17, -6, 35, 13, 3, -17, -18, 4, 49, -17, 19, -46, 41, 21, -14, 38, -9, -17, -73, -46, -3, -41, -8, 31, -2, -6, -34, 19, -30, -19, -18, 13, 7, 17, -43, 3, -5, -26, -3, 72, -47, 18, 23, 36, -39, -19, -23, 33, -39, -17, -22, 5, 0, -83, 20, 5, -86, 0, -41, 45, 32, 11, -52, -32, -25, 96, -2, -23, -17, -45, 28, -3, 53, -47, 42, 16, 66, -3, 6, 10, -8, 52, -25, -21, -17, 17, -6, 33, 1, -24, 14, 4, -43, 30, 12, -15, -39, 31, 10, -46, 14, 34, 28, 31, 10, -25, 28, 50, -22, -41, -46, 20, -24, -1, 12, 18, -22, 12, 57, 40, 33, 31, -54, 31, 1, -37, 11, 28, -31, -41, -60, 25, -12, -12, 10, 37, 22, 10, 0, 10, -12, 4, -1, 31, -14, -13, 14, 24, -19, -11, -29, -14, -27, -8, -5, 44, -6, 7, 69, -24, -11, 1, 7, -84, 21, -30, -11, 24, 12, -14, -5, 51, 24, -6, 63, -2, -16, -41, 0, 45, -39, 7, 18, 1, -27, 16, 33, -24, 39, -47, -9, -61, 59, 41, -36, -23, -32, 6, -5, -39, -14, -7, -45, -6, 24, 56, 43, -12, 15, 25, 16, -43, 32, 5, 33, -12, 33, -35, -19, 29, 56, -2, -11, 0, -57, 8, -2, -24, 32, -42, 17, 8, 6, 18, 34, -24, 23, -20, 15, -7, 0, 22, 8, 4, 79, -70, -15, -21, 38, 10, 38, 18, -10, -45, -4, 22, -71, -20, 3, -60, -50, 16, 47, -2, 24, -14, -7, 54, -17, 20, 21, -19, -34, 86, -31, -32, 1, 10, 0, 30, -21, -46, -7, 10, -32, 14, 2, -39, -56, -33, -16, -17, 23, 6, -15, 14, -9, -16, 27, 25, 34, -44, -13, 27, 31, -3, -14, 29, 38, 52, -13, 37, 1, 8, 39, 9, -55, 48, 5, -14, 16, -13, -3, 8, 42, -19, 36, 28, 19, -16, -64, 59, -18, -10, -12, -58, 42, 23, 73, 7, -23, 4, -52, -11, -42, 28, -50, 8, -53, -8, 4, 30, 10, -35, 24, 14, -22, 32, -2, 87, 27, -54, 8, -12, 4, 70, 38, 52, -23, -2, -34, -13, 20, -25, -7, -3, 36, 9, -42, -60, -24, -28, 11, 39, -65, -20, 22, -51, -8, -17, 5, 70, 26, 9, -52, 13, -12, 18, 1, -52, -11, 53, 10, -22, 1, -37, -12, -1, 3, -29, 5, -5, -2, 63, 55, 11, -11, -11, 30, 32, -37, -36, 13, -32, 8, 9, 6, -28, -15, 1, -27, -2, -1, -11, -2, 27, 43, -52, 25, -26, 58, 58, -9, -37, 40, -39, -37, 0, -4, -45, -22, 33, 5, 25, 51, -17, 0, 38, 13, 26, 34, -6, -5, 26, -34, 48, 11, -42, 11, 0, 12, -29, 37, -16, -33, -27, -7, 32, 15, 23, -25, 22, -16, 7, -20, -37, -21, -30, 10, 14, -15, -5, -5, -23, -5, 48, 51, -25, -68, -14, -15, -49, 2, 14, 8, 22, -2, 26, 28, -12, -42, 23, -7, 81, -36, -36, -64, -5, 33, 21, 57, 31, -61, -1, 30, -13, 22, -46, 5, -32, -32, 14, -29, -24, 9, 27, 14, 10, 18, -25, -18, 2, 11, 1, -13, 2, -1, -5, -41, -62, 2, -37, 1, -49, 30, 0, 7, 7, -18, 33, -19, -6, 0, 57, 1, -14, 28, 0, 13, -9, -11, -35, -8, 22, -10, 0, 20, 11, 13, -64, -13, -16, -66, -56, 61, 54, 21, 42, -30, 30, -30, -57, -31, 22, -5, 3, -46, -14, -12, 20, -51, 76, 23, 9, -31, -35, 33, -24, 55, -19, 0, -36, -39, 11, 61, -73, 6, 19, 11, 51, -9, -19, 2, -19, 41, -17, -40, 1, 34, 13, -23, -39, -24, 39, -53, -18, 13, 22, 9, 17, 19, -23, 10, 50, -73, -25, 12, -60, 1, 21, 32, 26, -32, 42, -41, 9, 8, 44, 9, 15, -23, 13, 12, -36, -18, 14, -19, -9, -1, -35, 15, -39, -12, 30, -51, 56, -48, -33, -9, -24, 7, 6, 70, -43, -9, -7, 13 ]
Per Curiam. On December 2,1965, plaintiff Eddie Chaffin was working as an automatic press operator for defendant Grand Eapids Metalcraft. On that date plaintiff reached into a press to “catch a die” and the “ram” came down crushing his right hand. Plaintiff’s hand was badly damaged with his right thumb partially being torn off and with his index finger being partially damaged. Surgery was performed and plaintiff’s right thumb was removed, including the “metacarpal bone”. Plaintiff claimed workmen’s compensation for the loss of a thumb under MCLA 412.10(a)(1); MSA 17.160(a) (1), which amounted to 65 weeks and which was voluntarily paid by the defendant. Next, plaintiff claimed workmen’s compensation for the industrial loss of his hand, MCLA 412.10(a) (12); MSA 17.160(a) (12), and after a hearing, the referee awarded compensation for 215 weeks. The Workmen’s Compensation Appeal Board affirmed the referee’s finding by a 4-2 vote. Defendant sought leave to appeal from the Board’s decision which was granted by this Court. On appeal, defendant claims that the Workmen’s Compensation Appeal Board committed reversible error in ruling that the plaintiff had suffered the specific loss of a hand. Defendant asserts that the plaintiff has not suffered the specific loss of his hand. In so arguing, defendant cites Hutsko v Chrysler Corp, 381 Mich 99 (1968), for the proposition that the loss of the hand must be equal to amputation. Defendant maintains that the testimony in the instant case does not support the conclusion that plaintiff has suffered the loss of his hand equal to amputation. Hutsko v Chrysler Corp, supra, held that where there is a specific scheduled loss, but no actual physical loss of the member, the test shall be (pp 102, 103, 104): “There must be that total incapacitating loss of use which renders the organ or member industrially useless for any type of work, * * * . The test is the degree of loss as compared with the actual physical loss by destruction or amputation. * * * Tn simple substance then we construe a specific schedule loss to be that loss of industrial use or function equal to actual physical loss as by destruction or amputation.” Furthermore, findings of fact by the Appeal Board will not be reversed by courts on appeal if the findings of fact are supported by the record, in the absence of fraud. Rea v General Electric Co, 35 Mich App 573 (1971). In the instant case, the findings of fact are supported by the record and the test in HutsJco is met. Therefore, this Court affirms the decision of the Workmen’s Compensation Appeal Board. See also Rea, supra. Affirmed. Costs to appellee.	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Quinn, J. A jury convicted defendant of breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. He was sentenced and he appeals. After claim of appeal was filed but before defendant’s brief was filed, his appointed appellate counsel was relieved of the assignment at the request of defendant. The trial court declined defendant’s request for new appellate counsel, and defendant’s brief was filed in propria persona. Our review of the record convinces us that the three issues raised by defendant are so unsubstantial that discussion of them is not required. Review does disclose two errors committed by the prosecuting attorney at trial, which would have been apparent to adequate appellate counsel but not to defendant. Both of the errors are reversible errors under prior decisions of this Court and both relate to the question of fair trial, and one relates to a violation of a constitutional right of the defendant. Because of this and the possible infringement of defendant’s right to appellate counsel, we depart normal procedure and consider issues not raised on appeal. During the presentation of the people’s case, the prosecuting attorney twice asked the deputy sheriff who investigated the case and arrested defendant, if the latter made any statement when arrested. The deputy sheriff responded in the negative to each question. During final argument, the prosecuting attorney stated: “The officer, Eobert Swackhamer, testified that Lester was involved in this and was arrested and properly warned and made no statement.” Defendant’s constitutional right to remain silent was violated, People v Gisondi, 9 Mich App 289 (1967). During cross-examination of defendant, the prosecuting attorney twice asked defendant about prior arrests, not arrests and convictions. The latter inquiry is proper; the former is not, People v Brocato, 17 Mich App 277, 302 (1969). Eeversed and remanded for a new trial. All concurred.	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Per Curiam. Appellant, a practicing attorney, was appointed by the circuit judge to undertake the defense of an indigent criminal defendant, Lester Hutchinson. Appellant refused to accept the appointment alleging that to require him to accept such an appointment amounted to an unconstitutional invasion of a lawyer’s right to due process and equal protection, amounted to involuntary servitude, and denied the defendant adequate assistance of counsel. The trial court, upon appellant’s refusal to accept the appointment, held appellant in contempt of court. From that order and judgment of contempt he appeals. The question before this Court is limited to the constitutionality of the criminal appointment system. MCLA 775.16; MSA 28.1253 provides that the presiding judge of the circuit court shall appoint an attorney for the defense of an indigent criminal defendant. The power of the court to require an attorney to accept such an appointment has been vested in the courts from the very dawn of the Anglo-American judicial tradition. For a historical development of the concept of requiring attorneys to render service to indigent criminal defendants, see the appendix to United States v Dillon (Petition of Strayer), 346 F2d 633 (CA9, 1965). Although there is no Michigan case directly on point, it has been almost universally held that, even in the absence of any compensation, requiring practicing attorneys to undertake the defense of indigent criminal defendants does not violate the attorney’s constitutional rights. See 21 ALR3d 819, §§ 2-4, pp 821-828. We would also direct attention to State v Rush, 46 NJ 399; 217 A2d 441; 21 ALR3d 804. (1966), in which identical assertions were found to lack persuasive substance. The Supreme Court in Powell v Alabama, 287 US 45, 73; 53 S Ct 55, 65; 77 LEd 158,172 (1932) held: “The duty of the trial court to appoint counsel under such circumstances is clear, as it is clear under circumstances such as are disclosed by the record here; and its power to do so, even in the absence of statute, can not be questioned. Attorneys are officers of the Court, and are bound to render service when required by such an appointment.” Affirmed. No costs, a public question being involved.	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ON REHEARING Before: Brennan, P.J., and Michael J. Kelly and D. F. Walsh, JJ._ Per Curiam. Defendants, the Department of Natural Resources, Holly Disposal, Inc., and William H. Leoni, Sr., previously appealed as of right to this Court from a June 28, 1989, permanent injunction barring Holly Disposal and Leoni from further construction of a solid waste landfill and precluding the dnr from issuing a construction permit for the landfill to Holly Disposal, Inc. We held that Mt. Holly Ski Area, Inc., did not have to exhaust its administrative remedies before bringing its action pursuant to the Environmental Protection Act (mepa). We further found that the permit issued by the dnr that allowed construction of the landfill was invalid because the dnr failed to give the requisite notice concerning the third application for a construction permit. As a result, we remanded the case to the dnr to issue public notice of Holly Disposal’s permit application. In addition, we held that because the permit was invalid, the trial court never should have reached the issue whether a permanent injunction should issue. Therefore, we vacated the permanent injunction. 189 Mich App 581; 473 NW2d 778 (1991). Plaintiffs subsequently moved for rehearing, arguing that this Court erred in holding that the permanent injunction issued by the trial court in the mepa action was necessarily invalid because the permit issued by the dnr for construction of the landfill was invalid. Plaintiffs argued that the mepa action brought by Mt. Holly is independent from the application for a permit to construct and operate a landfill. We agreed and granted rehearing limited to reconsideration of this Court’s vacation of the permanent injunction. On rehearing, we consider the merits of the permanent injunction granted by the trial court. We again vacate the permanent injunction. This Court reviews de novo actions brought under the mepa. Portage v Kalamazoo Co Road Comm, 136 Mich App 276, 279; 355 NW2d 913 (1984). However, the trial court’s findings of fact will not be overturned unless they are clearly erroneous or unless the reviewing court is convinced it would.have reached a different result had it occupied the bench at trial. Id. The grant or denial of an injunction is within the sound discretion of the trial court. Dafter Twp v Reid, 159 Mich App 149, 163; 406 NW2d 255 (1987). Injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there is real and imminent danger of irreparable injury. Id., p 163, citing Wexford Co Prosecutor v Pranger, 83 Mich App 197, 205; 268 NW2d 344 (1978). Defendants contend that a prima facie case was not established because the trial court failed to make the dual inquiry mandated. To determine whether a plaintiff has established a prima facie case under the mepa, the trial court must consider whether a natural resource was involved and whether the effect of the activity on the environment rose to the level of impairment to justify the court’s injunction. Portage, supra, p 280. There is no question that a natural resource was involved in this case. Whether the impact of the activity rises to the level to justify the court’s injunction is a more difficult question to answer. The Michigan Supreme Court has recognized that virtually all human activities can be found to adversely affect natural resources in some way. Id., p 281, citing West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741, 760; 275 NW2d 538 (1979). However, a court is not empowered to enjoin any conduct that does not rise to the level of an environmental risk proscribed by the mepa. Portage, supra, p 281. The applicable standard, "has or is likely to pollute,” is a limitation as well as a power. Id., p 282, citing Oscoda Chapter of PBB Action Committee, Inc v Dep’t of Natural Resources, 403 Mich 215, 233; 268 NW2d 240 (1978). In this case, it is arguable that Mt. Holly established a prima facie case of the likelihood of pollution. Mt. Holly’s witnesses testified that the landfill would be located on porous sand and gravel. The witnesses testified that, eventually, leachate from the landfill would percolate through the landfill liner, through the sand and gravel, and down to the ground water and contaminate it because a recharge area was involved. Mt. Holly’s experts testified that there was insufficient data to determine whether there was an aquiclude, or barrier to prevent movement of leachate to the ground water. Mt. Holly’s witnesses testified that plaintiffs were located below the landfill and that the groundwater, filled with leachates from the landfill, would flow in plaintiffs’ direction. Once a plaintiff establishes a prima facie likelihood of pollution, the burden of proceeding shifts to the defendant. MCL 691.1203; MSA 14.528(203); Ray v Mason Co Drain Comm’r, 393 Mich 294, 311; 224 NW2d 883 (1975). However, the burden of proof stays with the plaintiff, and once the defendant rebuts the prima facie case of the likelihood of pollution, the burden of going forward with the evidence shifts back to the plaintiff. Id. The nature of the evidence necessary to rebut the plaintiff’s showing varies. Id., pp 311-312. Defendants’ expert witness Kunkle testified that once the contaminants reached the water table they would move horizontally instead of vertically as Mt. Holly’s expert had testified, because he believed that the area was a transitional or discharge zone, as opposed to a recharge area. Kunkle believed that any contaminants would be discharged into a marsh area rather than the ground water and plaintiffs’ well water. Kunkle also claimed that the liner in the new landfill design was approximately ninety percent effective in preventing leakage. Kunkle testified that there is no scientific engineering design currently on the market that could completely guarantee that leachate would not contaminate the ground water. We find that the trial court abused its discretion in granting the injunction. Dafter Twp, supra. At first glance, the case appears to be a battle between the experts. However, we find that there was insufficient evidence to justify the grant of a permanent injunction. Mt. Holly’s main expert, Dr. Mozola, testified that there was insufficient data to determine if an aquiclude existed beneath the landfill site to prevent ground water contamination. He further testified that, unless specifically tested, it would be impossible to state, with any degree of certainty, the extent to which surrounding wells would draw contaminants from under the site because of the nature of the soils. The trial court noted that there had been no testimony regarding whether the levels of leachate reaching the domestic wells would be toxic. There is no indication regarding the impact the leaching would have under either design of the landfill. The trial court emphasized in its opinion that there was insufficient on-site testing and data upon which the parties’ main experts could base their opinions and that their opinions were based on speculation. We also note that Mt. Holly’s experts did not comment with regard to the new landfill design proposed by defendants and that there is no testimony regarding whether the allegedly reduced amount of leachate from the new design would result in a likelihood of pollution. Accordingly, we find that there was insufficient evidence upon which to grant the harsh remedy of a permanent injunction and that the trial court abused its discretion in doing so. Injunction vacated. Under MCL 691.1202; MSA 14.528(202) and MCL 691.1204; MSA 14.528(204), a party may bring an action for permanent equitable relief against any other party to protect the air, water, and other natural resources from pollution, impairment, or destruction. Leachate is "the liquid that has percolated through soil or other medium.” Webster’s Third New International Dictionary, Unabridged Edition (1965). Recharge is the replenishment of the ground water reservoir by the addition of water. Hamblin, The Earth’s Dynamic Systems (Minneapolis: Burgess Publishing Co, 3d ed, 1982) p 510. An aquiclude is "a geologic formation or stratum that confines water in an adjacent aquifer.” Webster’s Third New International Dictionary, Unabridged Edition (1965).	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ON REMAND Before: Hood, P.J., and Shepherd and KN. Sanborn, JJ. Shepherd, J. Defendant appeals a December 18, 1989, order of the Kent Circuit Court affirming a March 28, 1989, order of the 61st District Court granting plaintiffs’ motion for summary disposition pursuant to MCR 2.116(0(10) and denying defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). This Court initially denied defendant’s application for leave to appeal in an order dated April 5, 1990 (Docket No. 124456). On January 29, 1991, the Supreme Court remanded the case to us for consideration as though leave to appeal had been granted. Wolfe v Employers Health Ins Co, 437 Mich 895 (1991). We reverse and grant summary disposition in favor of defendant. Plaintiffs initially filed a complaint for declaratory relief in the district court, requesting the court to determine whether defendant was liable on its health insurance policy for expenses incurred in connection with Michelle Wolfe’s pregnancy. On February 16, 1987, Michelle Wolfe was informed by her physician that she was pregnant. On May 1, 1987, her husband, Scott Wolfe, was terminated from his employment with B & B Screw Machine for lack of work. Subsequently, the former employer notified defendant to cancel plaintiffs’ health insurance coverage effective April 30, 1987. Defendant acceded to this request. In June, defendant offered plaintiffs an individual conversion policy as required by the original insurance policy. Plaintiffs refused defendant’s offer of a conversion policy, because they claimed that they could not afford the higher premiums. The plaintiff’s child was born in September 1987. The total expenses of the childbirth were $4,305.75. Despite plaintiffs’ repeated demands, defendant refused to pay the expenses. A motion for summary disposition based upon a failure to state a claim upon which relief can be granted, MCR 2.116(C)(8), tests the legal sufficiency of a claim by the pleadings alone. Parkhurst Homes, Inc v McLaughlin, 187 Mich App 357, 360; 466 NW2d 404 (1991). The court must accept as true all well-pleaded allegations in support of the claim, as well as any reasonable inferences or conclusions that can be drawn from the facts. Ashley v Bronson, 189 Mich App 498, 501; 473 NW2d 757 (1991). The motion should be granted only if the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). A motion for summary disposition under MCR 2.116(0(10) may be granted when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A motion for summary disposition based upon the lack of a genuine issue of material fact tests whether there is factual support for the claim. Petaja v Guck, 178 Mich App 577, 578; 444 NW2d 209 (1989). Giving the benefit of reasonable doubt to the nonmoving party, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Id. The party opposing the motion has the burden of showing, by affidavits or other documentary evidence, that a genuine issue of disputed fact exists. Mirza v Maccabees Life & Annuity Co, 187 Mich App 76, 80; 466 NW2d 340 (1991). Both parties rely upon Providence Hosp v Morrell, 431 Mich 194; 427 NW2d 531 (1988), a case in which an insurance company terminated coverage and left a pregnant woman uninsurable. There, United Fidelity Insurance Company issued a group health insurance policy to Morrell Builders, which was owned by Russell Morrell. Both Russell Morrell and his wife, Norah, were covered under the policy. In May 1982, United Fidelity notified Morrell Builders that the group policy would be can-celled on July 1, 1982. At the time of termination, Norah Morrell was pregnant. She gave birth in September 1982 at Providence Hospital. Subsequently, United Fidelity refused to pay the hospital expenses, relying upon the previous cancellation of the policy. When Russell Morrell refused to pay, the hospital sued him, causing Russell Morrell to file a third-party suit against United Fidelity. Both Morrell and United Fidelity moved for summary disposition in district court. The district court granted summary disposition in favor of Morrell, and the circuit court affirmed. After granting leave to appeal, this Court affirmed in an opinion per curiam, Providence Hosp v Morrell, 160 Mich App 697, 702; 408 NW2d 521 (1987), stating: Therefore, we hold that where, as here, an insured develops a condition during the life of a health insurance policy and that policy is subsequently cancelled or terminated by the carrier, the carrier remains liable for those expenses which arise from that condition where those expenses would be covered by the policy had it not been terminated. The Supreme Court partially affirmed the judgment of this Court, agreeing with this Court that public policy may override an insurance policy provision allowing the insurer to terminate coverage. In Morrell, the Supreme Court held that, as a matter of public policy, the health insurer remains liable for pregnancy-related expenses that are incurred after the insurer terminated the policy if the pregnancy occurred while the policy was effective. The Supreme Court deemed it unwarranted to extend this principle to cases not involving pregnancy. Plaintiffs argue that the public policy implicated in Morrell applies to the present case. Plaintiffs assert that if a pregnancy occurs while a health insurance policy is in effect, public policy requires the insurance company to pay pregnancy-related expenses that ordinarily would have been covered had the insurance policy not been terminated. Plaintiffs contend that under Morrell it makes no difference who cancels the coverage because the public policy of the State of Michigan is to protect the family’s decision to have a child and their reasonable expectations that their medical expenses would be covered. Moreover, plaintiffs maintain that their refusal to purchase an individual conversion policy does not alter the public policy implicated in Morrell, because there is no requirement that plaintiffs be rendered uninsurable upon the cancellation of the health insurance policy. Further, plaintiffs assert that the high cost of the conversion policy violated the public policy enunciated in Morrell. We decline to extend Morrell to the facts of this case where the insurance policy covering Michelle Wolfe was cancelled pursuant to the instructions of her husband’s employer. Contrary to plaintiffs’ construal, the holding in Morrell does not stand for the proposition that any termination of an insurance policy covering a pregnant woman is automatically against public policy. Rather, the holding in Morrell is limited and applies only to the cancellation of a policy initiated by the insurance carrier. In the present case, defendant cancelled coverage in response to the request by plaintiff’s employer and then offered a conversion policy to plaintiffs, which they refused. Unlike the insurance carrier in Morrell, defendant did not initiate the termination of coverage. Moreover, given that plaintiff’s employer ceased coverage for its termi nated employee and stopped paying premiums, defendant was only honoring its obligations under its contract with plaintiffs employer to terminate a policy. Thus, we hold that the public policy implicated in Morrell does not apply to the cancellation by plaintiff’s employer. Because Morrell does not apply to a cancellation requested by the employer, the lower courts erred in finding that defendant was liable for plaintiffs’ pregnancy-related expenses as a matter of public policy. In addition, we believe that the lower courts erred in extending the public policy exception enunciated in Morrell to include a person who is not rendered uninsurable as a result of the termination of a medical insurance policy. Both this Court and the Supreme Court in Morrell were concerned that the termination of an insurance policy by the insurance carrier would render a pregnant woman uninsurable. Morrell, supra, p 199. Here, plaintiff Michelle Wolfe was not rendered uninsurable as the result of the termination of the health insurance policy, because, as plaintiffs conceded, defendant offered them an individual conversion policy to cover the anticipated pregnancy-related expenses. Given that plaintiffs refused defendant’s conversion policy offer, Michelle Wolfe was not uninsurable at the time the insurance policy was cancelled. Therefore, the public policy exception in Morrell does not apply to them. The lower courts also erred in finding that the allegedly high costs of the individual conversion policy violated the public policy implicated in Morrell. In this case, the cost of the conversion policy offered to plaintiffs was between $342 and $372 a month. Under the group insurance plan, plaintiffs employer had been paying $137 a month for this insurance coverage. Notwithstanding the fact that the individual conversion policy was offered at a higher rate than that of the employer’s group policy, we note that there was no factual or legal basis to justify the lower courts’ determination that the higher cost of the conversion policy by itself violated the public policy invoked in Morrell. Had there been factual allegations coupled with expert opinion that the increased rates have no reasonable relationship to the change in risk that accompanies an individual, as opposed to a group, policy, we might have been faced with a different issue. In view of the fact that defendant did not terminate the original insurance policy or refuse to offer a conversion policy, we must conclude that defendant has no liability to pay for the pregnancy-related expenses incurred by Michelle Wolfe. Accordingly, we reverse the grant of summary disposition in favor of plaintiffs pursuant to MCR 2.116(0(10). Because plaintiffs failed to state a claim on which relief may be granted, we grant summary disposition for defendant pursuant to MCR 2.116(C)(8). Reversed.	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Memorandum Opinion. Plaintiffs instituted an action to recover for damages resulting from an automobile-bicycle accident; the jury returned a verdict of no cause of action. An examination of the record and briefs discloses no error depriving plaintiffs of a substantial right. Affirmed.	[ -68, 21, 15, 7, -17, -19, 49, 25, -14, 53, -25, 17, -23, 22, -33, -77, 28, -3, 18, -17, -15, -45, -12, 16, -22, -28, 41, -66, -44, 22, 29, -28, -6, -12, -47, -57, -26, 46, 7, 10, 23, -5, 9, -3, -4, -58, 28, -28, -10, 8, 66, -9, -3, -72, -42, -12, 21, 49, -26, 3, 2, 20, 27, 45, 14, -41, -34, -31, -20, -5, -72, 8, -27, -60, -25, -12, 19, 31, -60, -5, -6, -21, 42, 35, -2, -4, -28, -62, 0, -50, -18, -29, 1, 10, 48, 37, 8, -35, 16, -5, -11, -44, -14, 54, -35, 8, -44, -43, 59, -39, -22, 79, -12, 32, -17, 22, 1, 26, 50, -29, -36, 0, -15, -2, -36, -4, -21, -8, -1, 32, 32, 5, 5, 32, -24, 16, -52, -7, -8, -16, 69, -16, 4, 8, -22, 58, 13, -50, 16, 6, 25, -65, -63, 24, 0, 6, -1, -26, 78, -18, 5, -10, -23, 11, 12, 16, -9, -5, 0, -10, 17, -48, 24, -14, 15, 57, -26, 39, -29, 27, 11, 18, -11, 11, -50, -12, -55, 30, 12, -65, 13, 12, -46, 7, -26, 22, 7, 24, 29, -21, 28, -12, -35, -60, -55, 41, 5, -2, 38, -11, 55, 35, -6, -58, 57, -35, 66, -64, -28, -40, -6, -12, -12, -67, -43, 1, -26, -21, -38, 9, -22, 17, -47, 15, 44, -20, -48, -17, 11, 14, 45, 33, -15, -46, -4, -8, 24, -32, -23, -20, 61, -36, -35, -10, 48, -37, 70, 41, -34, 50, 17, 77, -32, 9, -31, -24, 8, 7, -36, 39, -13, -34, -23, 47, 6, -44, -9, 14, 53, -3, 25, -17, -22, -20, -38, 2, 18, -27, 17, -2, -12, -12, 18, 31, -18, -18, 15, 20, -39, -21, 10, -2, 2, 56, 17, 9, -12, -18, -34, 46, -53, 68, 14, 8, 38, 16, -18, 26, 12, -12, -58, 43, 12, -34, -28, -80, 38, -78, 2, -3, 14, 34, -20, -13, -7, -6, 51, 30, -22, -21, 29, 63, 11, -42, -22, 18, -4, 23, -24, 32, -72, -48, 8, -42, -44, -47, 17, -9, -90, 35, 20, 11, 31, 16, 36, 66, 24, 30, -110, 63, -14, -14, -25, -6, -65, -27, 70, -10, -46, 32, 23, -25, 23, -59, 7, 13, -51, 5, -14, -16, -50, -37, 57, 10, -57, -7, -3, 18, -21, 15, -31, 32, 19, -16, -65, -10, 4, -11, 13, 18, -12, -20, -14, -2, -5, 30, 54, 53, -26, -73, 13, 10, -38, -92, -13, 0, 29, 16, 12, -15, -8, -14, -21, -37, 47, -40, -4, -20, 19, 22, 1, -25, -59, 33, -23, -26, 17, 7, 38, 20, 40, -17, 22, 28, 16, 29, 8, -26, -49, -19, -35, -11, -24, 13, 11, -2, -31, -42, 26, -29, -4, -16, 15, 8, 1, 13, -55, -9, -9, 64, 6, -21, -7, 19, 11, -32, 58, 62, -34, -4, -14, -11, 28, 13, -68, 13, -2, 21, -46, -59, -32, 29, -71, 18, 12, 17, 0, -34, -16, -4, -33, 54, -17, -4, -39, 18, -4, -9, -24, 29, -22, 12, -23, -4, -35, -31, 2, 18, -6, -37, 86, -2, -24, 0, -52, 13, -24, -19, 63, -18, -23, -4, -9, -41, 11, -23, -21, 62, 30, 38, 0, 6, 13, 47, 45, 35, 20, -19, 31, -43, 7, -31, -7, 35, 55, 27, 21, -12, 32, -17, 3, 7, 23, -28, -41, -29, -26, 15, -15, -46, -7, 10, 2, 4, -37, -44, 40, 15, 14, -46, 4, 1, -8, -14, -48, 16, -25, -35, -20, 36, -36, 43, -8, -2, 48, 24, -9, 0, -28, -80, 54, -2, -32, 25, 3, -31, 13, 43, 45, -15, -44, -33, 0, 46, -4, -21, -36, -2, 33, 26, -8, -21, -4, -26, -52, 60, 3, 63, -32, 0, -10, 35, 42, 0, -8, 10, -26, 14, -20, 6, -33, 52, 3, -68, -34, -1, 0, -9, -60, -36, -24, 11, -17, -1, -9, 18, 9, -20, -33, 45, 38, 13, 27, 37, 43, 62, 49, 43, -47, 23, -7, -30, 58, -11, 37, -6, 56, 25, 54, -9, -4, 47, -9, -5, 7, 41, 52, 13, -9, -16, 13, -44, -9, 35, -10, -30, 6, 26, 12, 35, -4, 2, -51, -19, 15, 28, 16, 12, 4, -41, 5, -26, -6, -50, -58, -30, 58, 17, 20, 6, 18, 18, -16, -9, 12, 26, 58, -13, 17, -62, 7, 50, 28, 53, 1, -18, -69, -25, 42, 21, -1, -43, 32, -41, 10, 12, 36, -34, 10, 11, 45, -15, 35, -7, -44, 21, -18, 19, -49, -12, -20, 30, 18, -66, -54, 47, 25, -16, 47, 12, -70, -23, 26, 20, -36, -15, -16, -15, -14, 49, 48, 43, -9, -8, 48, 36, 46, 37, 6, 32, 13, 3, -19, 35, 11, -12, 31, 71, 34, 38, 8, -21, 12, -66, 3, 44, 5, 70, 29, -17, 38, -1, -30, 3, 38, 25, 11, -48, -11, -19, 13, -61, -20, 67, -22, 16, 25, -63, 0, -14, 0, 15, -44, 20, 47, -21, -58, -10, 43, -17, 65, -22, 13, 11, 14, 0, -21, -13, -13, 0, -32, 13, -32, -34, 78, -6, -50, -12, 12, -3, 37, 42, -75, -9, 27, 30, 27, -24, 11, 20, 14, -16, -58, 35, -51, -22, -16, -12, -13, 15, 19, 13, 7, -22, 10, 18, -17, 19, 83, -30, -39, 37, 44, 28, -20, 21, 29, 13, -5, 0, 59, -13, 37, 33, 35, 55, -29, 16, 55, -3, 18, 44, -6, -84, 21, 7, -23, -6, -1, -7, -18, 19, 36, -16, 56, 20, 0, -9, -18, 15, 65, 0, -29, 33, 11, -46, 14, 47, 3, 63, 30, -19, -43, -1, 52, -16, -24, 26, -9, 0, 5, -20, -17, -16, -8, -26, 3, -14, -6, 22, -20, 47, -4, -20, -9, -14, 29, -12, -64, 11, 7, -128, -15, 35, -62, 10, -11, 14, 4, -21, 0, 3, 18, -9, -37, 10, -5, 19, 16, 11, -38, -3, 4, -10, -3, 2, 5, -20, -2, 0, -1, 53, 31, -5, 33, 49, -36, -71, 24, 16, 3, 8, 65, 17 ]
Targonski, J. On June 10,1965, while on duty as an attendant at a gasoline service station in the City of Saginaw, one Sakie Neymeiyer was shot and killed by the defendant. At trial in Saginaw County Circuit Court, two other attendants at the same service station, eyewitnesses to the shooting, testified that the defendant had attempted to rob the station, that in defiance the deceased kicked the defendant, and that while the defendant was backing out the door, he fired a single shot. Defendant admitted shooting the deceased, but denied any involvement in an armed robbery. Defendant testified that he had entered the service station to use the restroom, that he drew his gun only when attacked by the deceased, and that the gun discharged when kicked by the deceased. Defendant was subsequently found guilty by a jury of first-degree murder. MCLA 750.316; MSA 28.548. We then granted defendant’s application for delayed appeal. Defendant raises a number of issues here. First, defendant contends that the trial judge was guilty of prejudicial misconduct. More specifically, defendant claims that several comments made by the trial judge in the presence of the jury and frequent ex tensive interrogation of witnesses by the judge constituted such interference as to deny defendant a fair trial. Defendant concedes that timely objection was not made at the trial, but claims that the interference by the judge resulted in such “manifest injustice” that this Court may take cognizance of the errors. We agree. As a general rule, failure to make timely objection precludes appellate review. People v McIntosh, 34 Mich App 578 (1971). However, since appellate courts cannot condone manifest injustice, this Court can react, even in the absence of timely objection, to error which resulted in a denial of a fair trial. People v Baker, 7 Mich App 471 (1967); People v Bedsole, 15 Mich App 459 (1969). This is particularly appropriate here, where any objection had to be made to the judge relative to his own conduct. The transcript of defendant’s trial contains approximately 300 pages of testimony. Of these 300 pages, approximately 55 pages are devoted to comments by the trial judge and interrogation by him of various witnesses. In determining the effect of comment and interrogation by the trial judge, the applicable test is whether what occurred prevented defendant from having a fair and impartial trial. People v Cole, 349 Mich 175 (1957); People v O’Hara, 278 Mich 281 (1936). In matters of trial conduct the trial judge has great power and wide discretion. People v Cole, supra; People v Young, 364 Mich 554 (1961). But even though the trial judge has the power to participate properly in the questioning of witnesses, to control the conduct of witnesses, and the conduct of attorneys in his courtroom, People v Cole, supra, this power is not unlimited. People v Wilson, 21 Mich App 36 (1969). If an examination of the record reveals that the veil of judicial impartiality was pierced by the trial judge, the case must be reversed. People v Wilson, supra; People v Bedsole, supra. Despite the absence of a fixed rule on what a trial judge may or may not say, People v Withrow, 26 Mich App 679 (1970), the courts of this State have previously enunciated the standard of conduct expected of trial judges: “ * * * a judge before whom a jury case is being tried should avoid any invasion of the prosecutor’s role.” People v Cole, supra, 196. “A judge may properly intervene in a trial of the case to promote expedition, and prevent unnecessary waste of time or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.” Canons of Judicial Ethics, Canon 15, quoted in People v Wilson, supra, 39. Upon examination and review of the complete record, we are convinced that the trial judge’s frequent comments and lengthy interrogations impaired “that balance of judicial impartiality necessary to a fair hearing”. People v Wilson, supra. Even though in some instances here the trial judge was merely exercising his right to question witnesses for the purpose of clarifying their testimony, nevertheless the cumulative effect of his questioning and commenting overstepped the permissible bounds. A primary concern for jury consideration in this case was whether to believe the defendant’s version of the shooting or that related by the two attendants. During the prosecution’s examination of one of the two attendants the following took place: “Q. (by the prosecution): How old are you. now? “A. Nineteen. “The Court: You mean all your life up to now? “A. Yes. “The Court: You still have some to live? “A. Yes. “The Court: You hope, huh? “A. Yes. # # # “Q. Are you employed at the present time? “A. Yes, I am. “Q. Where is this? “A. Saginaw Steering Gear. * * # “Q. Is the work hard? “A. Pardon? “Q. Is the work hard? “A. Bad enough. “The Court: It’s different than when you used to work for us? “A. Yeah. “The Court: Used to be our sidewalk shoveler and yard raker, isn’t that right? “A. Yes. “The Court: He lives in a good neighborhood. * # # “Q. What schools did you go to? “A. Do you want all of them or just high school? “Q. Well, did you finish high school? “A. Yes I did. I went to Saginaw High. I also went to Central Junior. “The Court: And to Longfellow? “A. Yes, and John Moore, too. “The Court: I see, they have got a new Longfellow now, you know? “A. Yes. “The Court: We’re getting up in the world.” The comments and questions by the trial judge in the presence of the jury, that he personally knew one of these attendants and that the attendant came from a “good neighborhood” and had worked for the judge, can only be construed as being prejudicial to the defendant. In effect, the judge was clearly lending support to the credibility of one of the two eyewitnesses, when it is the sole province of the jury to determine the credibility of witnesses. People v Padgett, 306 Mich 545 (1943). Further, the record indicates that the trial judge assumed the role of the prosecutor at various times, materially interfered with cross-examination by defense counsel, and made supposedly humorous comments which could have been interpreted by the jury as belittling the defense. Clearly, this is not a ease where the questioning and comments by the trial judge were limited in scope, material to the issues in the case, and did not communicate to the jury any opinion that the trial judge may have had regarding these matters, so as to escape prejudicial error. People v Piscunere, 26 Mich App 52 (1970). But unfortunately, this is a situation where the trial judge, seemingly well-meaning in his exuberant pursuit to uncover the truth, displayed partiality that quite possibly could have influenced the jury to the detriment of the defendant’s case. Therefore, because of the aforementioned reasons, we have no other recourse but to find that the defendant was denied a fair and impartial trial despite the evidence presented. People v Smith, 363 Mich 157 (1961); People v Wilson, supra. We are not unmindful of the fact that similar conduct involving the same trial judge as in this case was treated in similar fashion by the Supreme Court in People v Smith, supra. As this case is re versed on the foregoing grounds, we do not feel it appropriate to evaluate defendant’s other claims of error at this time. Reversed and remanded. All concurred.	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Per Curiam. Plaintiff Mary Ann Dellaria was injured when the car she was driving on a favored road collided with defendants’ vehicle, travelling on a subordinate or inferior road, at an intersection. Although there was no obstruction to the view of either party for a distance of approximately one-half block before arriving at the intersection, plaintiff driver did not observe defendants’ vehicle until both cars were approximately 40 feet from the intersection. Since defendant Lottie Tessin, being faced with a stop sign, was under a duty to yield the right, of way at the intersection, pursuant to MCLA 257.649; MSA 9.2349, the court below instructed the jury that defendants were negligent as a matter of law and that such negligence constituted a proximate cause .of defendants’ injuries. This ruling has hot been challenged. The issue of plaintiff driver’s contributory negligence was left to the jury, and they returned a verdict of no cause of action. Plaintiffs’ motion for a judgment notwithstanding the verdict and for a new trial on damages was denied by the trial court. On appeal, plaintiffs contend that the trial court was in error in failing to instruct the jury that plaintiff driver'was not guilty of contributory negligence as a matter of law. We have often stated that the care exercised by the plaintiff at the time of an injury is a question for the jury to determine. Thompsons Essex Wire Co, 27 Mich App 516 (1970). Where there is uncertainty as to this issue it remains a matter of fact for their consideration. Detroit & M R Co v Van Steinburg, 17 Mich 99 (1868). Where, as here, there is some question as to whether the favored driver failed to exercise due care by failing to notice defendants’ vehicle until both cars were approximately 40 feet from the intersection although her view was unobstructed for a considerably longer distance, the question of contributory negligence is one for the trier of fact. Tucker v Gillette, 6 Mich App 210 (1967); Sattiewhite v De La Cuadra, 31 Mich App 117 (1971). Plaintiffs also contend that the trial court’s instructions to the jury were misleading and erroneous. Beading the instructions as a whole, we have concluded that they adequately and fairly informed the jury on the applicable law. Bauman v Grand T W R Co, 18 Mich App 450 (1969); Huntley v Motor Wheel Corp, 31 Mich App 385 (1971). Affirmed.	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Brennan, J. Claimants appeal as of right from an August 2, 1990, judgment of forfeiture of property seized under a controlled substances provision of the Public Health Code, MCL 333.7521; MSA 14.15(7521), entered by Wayne Circuit Judge Michael J. Talbot. We affirm in part and reverse in part. The record reveals that, in 1988, claimant Robert Hawkins pleaded guilty in Detroit Recorder’s Court of attempted possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v); MCL 750.92; MSA 28.287. The case was adjudicated under MCL 333.7411; MSA 14.15(7411) and he was placed on probation. On the basis of the assets Hawkins disclosed in his probation report, the Wayne County prosecutor’s office became suspicious that he was living well beyond his legitimate income as a retired Chrysler factory worker. The forfeiture unit of the Wayne County Prosecutor’s office supplied this information to the Oakland County Narcotics Enforcement Team (net), which began investigating Hawkins. This investigation ceased after surveillance by net as well as the State Police revealed nothing unusual except for heavy traffic in and out of the claimants’ house and the presence of many expensive automobiles. Subsequently, the State Police referred an informant named Randy Ulmer to West Bloomfield Police Officer Jerome Sharpe. Ulmer indicated that he had seen a large amount of cocaine in the basement of claimants’ house. On the basis of this information, net and Sharpe executed a search warrant for claimants’ West Bloomfield home on May 9, 1989. The search revealed, among other items, weapons, a suspected drug ledger, and a great amount of cash, some of which had a residue of cocaine. A specially trained canine unit also indicated that traces of cocaine were present in areas throughout the house and in one car belonging to the claimants. This search resulted in the present forfeiture proceedings, which were instituted on May 10, 1989. Before trial, the parties reached a comprehensive stipulation regarding the tracing of assets in this case. Robert Hawkins stated that he had worked for Chrysler Corporation for sixteen years. He further stated that he had owned rental properties in Detroit since he was nineteen years old, as well as a beer and wine store from 1978 to 1986. Hawkins explained that his income resulted from these sources plus some gambling profits and loans that he made. In addition, claimants alleged that they had received $2 million as the result of a personal injury lawsuit in the Macomb Circuit Court. The lawsuit allegedly stemmed from a 1983 incident when Margaret Wilson, an insurance agent from Chicago, became upset after Pamela Hawkins told her she was not interested in the insurance Wilson was selling. Wilson allegedly hit Pamela, who then fell over a banister and down some stairs. Claimants stated that Pamela was pregnant at the time and later had an abortion because she thought her doctor, Dr. Lall, told her that something may have been wrong with the fetus as a result of the fall. The Hawkinses filed a lawsuit against Wilson in the Macomb Circuit Court on October 11, 1985, and were represented in that suit by attorney Alvin Brazzell. They later settled the suit with Wilson for $2 million, a substantial amount of which was delivered in cash. Brazzell abruptly left his practice in February 1987 and, for reasons unknown to this Court, was incarcerated in a federal prison at the time of trial. The trial court found claimants’ lawsuit against Wilson to be nothing more than a money-laundering scheme. Judge Talbot ultimately ordered forfeiture of the West Bloomfield home, the cash found therein, jewelry, weapons, cars, a computer and printer, a boat, property located in Florida, and several different bank accounts, annuities, and life insurance policies. Most of the property forfeited was located in Oakland County. Claimants raise a number of issues on appeal. ISSUE i Claimants first argue that the court erred in ordering forfeiture of all the assets except for the Lincoln, the Tiffany, and the Bayliner boat because those are the only items covered by a seizure order or arrest warrant. Claimants contend that the trial court had no jurisdiction over nonseized assets and, therefore, those assets should have been returned to claimants. However, pursuant to MCL 333.7522(a); MSA 14.15(7522)(a), seizure without process may be made where it is incident to an arrest or a search warrant. Here, the previously issued search warrant included many of the items referred to by claimants. Therefore, those items did not need to be listed again on a seizure order. The property not included in the search warrant was subsequently seized with process by seizure orders and orders freezing assets. Consequently, the circuit court had jurisdiction to proceed with this case under § 7522. Claimants assert that the trial court erred in ordering forfeiture of an annuity policy despite the fact that it was never named in any filed complaint nor made the subject matter of a seizure warrant or order freezing assets. Contrary to claimants’ argument, a June 1, 1989, order freezing assets included two annuities. In addition, on the basis of the order freezing assets, settlement negotiations, and its seizure during the execution of the search warrant, it is clear that claimants had notice before trial that the asset was subject to forfeiture. Notice regarding the court’s alleged lack of jurisdiction with regard to the annuities should have been raised before trial. By leaving the matter to the time of trial, claimants waived jurisdiction of the policies to the court. Claimants argue that the trial court lacked jurisdiction over property located in Florida. We agree. Michigan courts have jurisdiction only over land situated within its territorial borders. MCL 600.751; MSA 27A.751; Stewart v Eaton, 287 Mich 466; 283 NW 651 (1939). Any complaint to forfeit claimants’ realty located in Florida should be filed with the Florida courts that have jurisdiction over that property. ISSUE II Claimants argue that the trial court erred in denying their motion to change venue to Oakland County because all the realty and personal property forfeited was located either in Oakland County or outside the State of Michigan. However, assuming the trial court did err in denying the motion, reversal is not warranted. Michigan’s venue provisions are nonjurisdictional. MCL 600.1601; MSA 27A.1601. ISSUE III Claimants argue that the court erred in its rulings with regard to several discovery matters. Claimants first argue that the trial court erred in denying basic discovery. For example, they state that the trial court erred in not requiring the people to answer an interrogatory requesting that the people set forth their various theories under which each item was claimed to be forfeitable. However, the people did respond, indicating that forfeiture was sought on theories that referred to the items as controlled substances proceeds, facilitators, or containers under MCL 333.7521; MSA 14.15(7521). The trial court properly found that the prosecutor could argue alternative theories. MCR 2.111(A)(2). In addition, claimants state that the court erred in not requiring the prosecutor to produce all documents concerning any criteria used by the prosecutor in bringing, prosecuting, or settling cases under the forfeiture act. We agree with the trial court that this information was not relevant. Accordingly, we find no abuse of discretion. Eyde v Eyde, 172 Mich App 49, 54; 431 NW2d 459 (1988). Moreover, we fail to see how claimants were prejudiced. MCR 2.613(A). Claimants next argue that the trial court erred in issuing for the people "secret” subpoenas with no notice to the claimants. Claimants refer to subpoenas that stated that "due to a continuing criminal investigation, notice of this Subpoena is not to be given to any named party.” One subpoena was issued to Pamela Hawkins’ doctor, Dr. Chitranjan Lall. Claimants argued that, as a result of this unfair tactic, they were foreclosed from asserting the doctor-patient privilege. Similar subpoenas were issued to First Federal of Michigan and Shearson, Lehman, Hutton without notice to claimants. Claimants contend that they were prejudiced in preparing for this case because they never received notice of these subpoenas. Claimants were entitled to notice of service of any discovery requests on witnesses. MCR 2.107(A); MCR 2.305(A)(1); MCR 2.306(B)(1). Such notice is necessary to any party before discovery may be had in order for the opposing party to assert any objection or move for a protective order to prohibit the production of any materials otherwise not subject to discovery. The conduct complained of was reprehensible. Nevertheless, we find that the action was not taken wilfully to prejudice claimants, but was taken for reasons involving the ongoing criminal investigation involving claimants. Further, Dr. Lall’s testimony was kept out of evidence at trial after claimants asserted the doctor-patient privilege. Therefore, no prejudice resulted in that regard. MCR 2.613(A). Further, claimants do not suggest that the prosecutor was not entitled to the information from First Federal of Michigan or Shearson, Lehman, Hutton, nor do they claim that they were prejudiced by the prosecutor’s receipt of the information. These subpoenas were utilized to supplement financial documents that were in the prosecutor’s possession as a result of the confiscation of records from claimants’ residence. Therefore, we find that reversal is not warranted on this basis. Claimants contend that the court erred in refus ing to require the people’s witnesses, including Randy Ulmer and various police officers, to respond to inquiries during deposition and trial regarding their backgrounds and addresses. Claimants argue that Ulmer was the only witness who allegedly had firsthand knowledge of a claimed violation of the Public Health Code by Robert Hawkins and that his credibility was at issue. Therefore, claimants argue that the information was relevant. We find that the trial court did not abuse its discretion in refusing to compel such discovery, because the line of inquiry was not relevant. Sucoe v Oakwood Hosp Corp, 185 Mich App 484; 462 NW2d 780 (1990). We note that the cases claimants cite are distinguishable because the claimants in this case had the names of the witnesses and could cross-examine them with regard to other information in order to determine their credibility. We fail to see how claimants were prejudiced as a result. See also People v Pleasant, 69 Mich App 322; 244 NW2d 464 (1976). Claimants argue that the trial court erred in not requiring the prosecution to identify and produce each and every document that it intended to offer in evidence at trial as well as other evidence of narcotics trafficking that would sustain forfeiture of the Florida property. The prosecution, however, indicated that a determination had not yet been made regarding what documents it intended to offer but that all documents were available for claimants’ inspection. Therefore, we find no abuse of discretion in that regard. Eyde, supra. Further, because we have decided that the Florida property was improperly forfeited, we need not address the second issue. Claimants argue that the trial court abused its discretion in denying their motion in limine to strike the people’s witness list. Claimants contend that the motion should have been granted because the people failed to provide a witness list two months before the date set for completion of discovery, as mandated for civil cases by Third Judicial Circuit local court rules. See Wayne Circuit LCR 2.301. Here, however, there was apparently no date set for completion of discovery, nor was there any order entered compelling a witness list. Therefore, we find no abuse of discretion. Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990). Moreover, we note that there are various factors the trial court must consider in determining discovery sanctions. See factors listed in Dean, pp 32-33. Although the people did not provide a witness list until one week before trial, that tardiness does not appear to be wilful, and claimants apparently never provided a witness list to the people. Further, we find that claimants failed to establish prejudice because they speak in vague and general terms of unknown witnesses, but fail to specify who the witnesses are and how claimants were prejudiced other than in general and conclusory terms regarding the preparation of their defense. Id., p 34. Many of the major witnesses, including Randy Ulmer, were deposed and apparently listed in the prosecution’s answer to claimants’ interrogatory asking the prosecution to identify each person the people might call as a witness at trial. Claimants had notice of the importance of the individuals and what information they had to offer. Accordingly, although we do not condone the behavior of the parties, we find no abuse of discretion. ISSUE IV Claimants argue that the trial court erred in denying them an evidentiary (Franks) hearing to determine the validity of the search warrant. Claimants contend that the court erred in ruling that the validity of the search warrant had previously been decided in the federal court and that collateral estoppel prevented the trial court from redetermining the issue. Claimants argue that it is improper for this Court to apply crossover estoppel to preclude the claimants from challenging the validity of the search warrant. Claimants argue that this is so because there is no mutuality between the charging parties in the two cases, because the federal court hearing the criminal case was required to apply a different burden of proof, and because claimant Robert Hawkins was not given a full or fair opportunity to litigate the issue in the federal forum. Collateral estoppel, as a means of judicial economy, precludes the relitigation of an issue in a subsequent and different cause of action between the same parties where the prior proceeding ended in a final judgment and the issue was (1) actually litigated, and (2) necessarily determined. People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990). It is necessary to establish that the same parties were involved in both proceedings. Id., p 155. Further, we must consider whether the party against whom collateral estoppel is asserted has had a full and fair opportunity to litigate the issue. Id., pp 156-157. Crossover estoppel involves issue preclusion in a civil proceeding following a criminal proceeding and vice versa. Id., p 155. The prior proceeding resulted in a final judgment. Further, the same parties were involved. The federal prosecution and the prosecution in this case are essentially the same party, albeit of different governments. Id., p 156. We also conclude that claimants had a full and fair opportunity to litigate the issue. Robert Hawkins was the only claimant who was involved in the prior proceeding. However, his interests should have been adequate to protect the interests of the other claimants. Finally, the issue was actually litigated and necessarily determined because the trial court in the federal action clearly ruled on the merits of the motion. Accordingly, we find that the trial court properly applied collateral estoppel with regard to this issue. Therefore, we need not address whether claimants are entitled to a Franks hearing. ISSUE V Claimants argue that the prosecution failed to prove by a preponderance of the evidence that the assets were subject to forfeiture, and that the trial court therefore erred in ordering forfeiture. Michigan law provides that anything of value that can be traced to an exchange for a controlled substance is subject to forfeiture under MCL 333.7521(1X0; MSA 14.15(7521X1X0. In re Forfeiture of United States Currency, 164 Mich App 171, 178; 416 NW2d 700 (1987). Forfeiture proceedings are in rem civil proceedings, and the party bringing the action must prove its case by a preponderance of the evidence. In re Forfeiture of 719 N Main, 175 Mich App 107, 114; 437 NW2d 332 (1989). In order for an asset to be ordered forfeited, the trial court must find that there is a substantial connection between that asset and the underlying criminal activity. In contrast, property that has only an incidental or fortuitous connection to the unlawful activity is not subject to forfeiture. In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246 (1989). The trial court did not clearly err. MCR 2.613(C); In re Forfeiture of $5,264, supra, p 260. Contrary to claimants’ argument, we do not believe that a connection with a specific incident of drug dealing must be shown for each asset; rather, the assets need only be traceable to drug trafficking. In the case at bar, the prosecution relied on the theory that Robert Hawkins, a retired factory worker, was a drug trafficker and that, on the basis of his unexplained increase in net worth from approximately 1983 to 1989, most of the assets later acquired by claimants were associated with drug dealing. The people presented evidence that Hawkins was in fact a drug dealer. Further, the people established that claimants had an exceedingly large income and amount of assets beyond what could be legitimately accounted for. Although claimants apparently had legitimate sources of income as well, they could not possibly account for their immense wealth. We find incredulous claimants’ explanation that the acquisition of their extensive assets was made possible by their receipt of a substantial cash payment for a personal injury claim. We agree with the trial court that the Macomb County lawsuit was fraudulent. Accordingly, there was sufficient evidence to demonstrate a substantial connection between drug trafficking and the property in this case. ISSUE VI Claimants argue that the trial court erred in ordering forfeiture of property belonging to Pamela Hawkins through joint tenancy or tenancy by the entireties, because she was an innocent owner whose property rights may not be diminished because of the conduct of another owner. The controlled substances act provides that property owned by another is not subject to forfeiture where the owner lacks knowledge of the drug activity. MCL 333.7521(l)(d)(ii) and (f); MSA 14.15(7521)(l)(d)(ii) and (f). See also In re Forfeiture of $5,264, supra, p 260. In the case of joint ownership of assets, the state may forfeit only the ownership interest of the noninnocent owner. In re Forfeiture of $53, 178 Mich App 486, 486; 444 NW2d 182 (1989). The trial court found that any property Pamela Hawkins claimed as her individual property or property owned jointly with her husband was subject to forfeiture pursuant to a joint enterprise theory. Again, we find no clear error. MCR 2.613(C); In re Forfeiture of $5,264, supra, p 260. The evidence established that Pamela Hawkins enjoyed the substantial wealth her husband earned and it is logical to assume that Mrs. Hawkins was aware that the income was not derived from legitimate sources. Most importantly, because we found that the lawsuit regarding Mrs. Hawkins’ injuries was fraudulent, it follows that Mrs. Hawkins knowingly participated in this scheme to launder money. ISSUE VII Claimants argue that the trial court erred in ordering forfeiture of assets traced by the prosecution to origins more than two years before May 10, 1989, the date of the initiation of the forfeiture action. Claimants refer to the two-year limitation period set forth in the Revised Judicature Act for actions for the recovery of a penalty or forfeiture based on a penal statute brought in the name of the people of this state. MCL 600.5809(2); MSA 27A.5809(2). Claimants do not contend that the action was untimely. We note that the Michigan Legislature adopted forfeiture provisions modeled, in part, after the federal forfeiture statute. See n 4, ante. Therefore, we find persuasive federal case law interpreting the similar provisions. In re Forfeiture of $53, supra, p 486. In United States v Milicia, 769 F Supp 877, 884 (ED Pa, 1991), the court found that the forfeiture statute begins to run when the drug offense is complete. The court ultimately ruled that proceeds derived from or used to facilitate a drug offense after the effective date of the forfeiture statute were subject to forfeiture liability even though this date was beyond the period of limitation. Id., pp 884-885. Claimants do not contend that any property acquired before the effective date of the forfeiture statute was forfeited. Accordingly, we find that no error occurred in this regard. ISSUE VIII Claimants argue that the trial court erred in employing mistakes of fact and law in its decision. Claimants first contend that the trial court incorrectly concluded that the prosecution could rely on a net-worth theory while not having to find that the assets in this case were traceable to any specific drug transaction. We disagree. The drug forfeiture act requires that the property be traced to drug dealing by a substantial connection. In re Forfeiture of $5,264, supra, p 262. As discussed above, a connection to a specific incident need not be shown. Here, the incident Ulmer testified to, together with the enormous income and assets beyond what claimants could legitimately have, provides a substantial connection to narcotics activity. Further, claimants argue that factual references regarding Robert Hawkins’ involvement in drug dealing were also not supported by the record. However, the testimony of Randy Ulmer, together with the "weight sheet” that was found in claimants’ house, was sufficient evidence to show that Robert Hawkins was a drug trafficker. Claimants contend that the trial court made inconsistent findings regarding the credibility of informant Randy Ulmer. Ulmer’s testimony, when reviewed as a whole, was certainly questionable. However, we cannot say it was not credible, especially where the trial court had a better opportunity to evaluate the witness. The trial court could properly find Ulmer credible, although he had been impeached, because he explained the inconsistencies. Further, the trial court could properly find that Ulmer had no bad personal feelings against claimants although he expected a percentage of the assets forfeited. Finally, claimants assert that the trial court, in making its findings of fact, referred to matters, such as newspaper articles, not admitted into evidence. We disagree. While noting a specific article regarding attorney Alvin Brazzell’s federal conviction, the trial court also noted that it was basing its decision on only the evidence Brazzell offered at trial. ISSUE IX Claimants argue that the trial judge erred in not recusing himself despite his clear bias and partiality against claimants or claimants’ counsel. We find that the trial judge did not abuse his discretion in denying claimants’ motion for recusal or disqualification. Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 23; 436 NW2d 70 (1989). Disqualification is appropriate when a judge cannot impartially hear a case, including when the judge is personally biased or prejudiced for or against a party or attorney. MCR 2.003(B) (2). An actual showing of prejudice is required before a trial judge will be disqualified. Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 731; 465 NW2d 395 (1991). The party who challenges a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. Arnholt v Arnholt, 129 Mich App 810, 817; 343 NW2d 214 (1983). Claimants brought three motions for recusal based on bias and prejudice. However, because claimants failed to provide a transcript from the second motion and failed to bring the third motion before the chief judge of the trial court, we will not address them. Nye v Gable, Nelson & Murphy, 169 Mich App 411, 413; 425 NW2d 797 (1988); MCR 2.003(C)(3)(a); Law Offices of Lawrence J Stockier, PC, supra, p 23. The first motion was based on various rulings made against claimants by the trial court and the trial judge’s allegedly unusual and close relationship with the prosecutor and his staff. Claimants raise only the latter issue on appeal. In regard to this issue, claimants refer to a note delivered by the prosecutor’s investigator to the trial judge. However, the investigator was merely relaying a message from the court reporter to the judge stating that she had to catch a bus. Apparently, the investigator just happened to be sitting closest to the judge. Claimants also refer to the prosecutors’ "admission” that they act as "runners and law clerks for the trial judge.” However, claimants have seen fit to add the words "for the trial judge,” which alters the meaning of the statement. The prosecutors explained numerous times that they had to act as runners and clerks for their own office because of a lack of staff. As a result, the prosecutors stated that their positions necessitated numerous trips to the courtroom and file drawers. We find no abuse of discretion. issue x Claimants argue that the trial court erred in ignoring its obligation to find a nexus or substantial connection between the subject assets and specific violations. We have already addressed this issue above. ISSUE XI Claimants argue that they were denied a fair trial as a result of the trial court’s unreasonable treatment of them, their counsel, and their witnesses before and during trial. Claimants assert that the trial judge demonstrated his bias by his comments, rulings, questioning of the witnesses, and conduct in general. As one example of the trial judge’s alleged prej udice, claimants point to a letter sent by Judge Talbot to the federal government regarding an "opportunity to serve at the federal level in a position” helping to fight the war on drugs. Claimants point out that the judge kept a running "tally” of the amount of assets he had forfeited. However, we note that he was required to keep such a tally pursuant to MCL 333.7524a; MSA 14.15(7524a). Moreover, the fact that the trial judge has a personal ambition to fight the "war on drugs” does not mean that he would decide a case unfairly. Further, a review of the trial judge’s questioning of witnesses leads us to believe that the judge was merely attempting to clarify testimony and elicit additional helpful information to aid in his role as factfinder. We note that a trial judge has more discretion to question witnesses during a bench trial than during a jury trial, and we do not find the questioning in this case to be improper. See In re Forfeiture of $53, supra, p 497; Law Offices of Lawrence J Stockier, PC, supra, p 24; People v Meatte, 98 Mich App 74, 78; 296 NW2d 190 (1980). Because this case involved no jury, concern over the effect of the judge’s comments and conduct did not exist. Nevertheless, a judge’s comments and conduct can indicate a possible bias. A trial judge may comment about cases in the absence of a jury. Ferrell v Vic Tanny Int'l Inc, 137 Mich App 238, 248; 357 NW2d 669 (1984). The issue of bias or prejudice should come to this Court’s attention only when a litigant can show that the trial judge’s views controlled his decision-making process. Id. After carefully reviewing the entire record in this case, we conclude that reversal is not warranted on this basis. It appears that throughout the trial the atmosphere was rather tense as a result of the bickering between counsel and between claimants’ counsel and the trial court. It appears to us that claimants’ counsel provoked the trial court with their comments and conduct in general. In addition to being disrespectful to the court in many instances, claimants’ counsel resorted to attacking a prosecutor by apparently stating that her conduct "typified the basest kind of projection as described in psychiatric literature.” This type of conduct was uncalled for. The trial judge also appeared to be agitated by the tactics of claimants’ counsel, such as what appeared in the judge’s eyes to be attempts to create appellate parachutes and reliance on what clearly appears to be a fraudulent lawsuit as an explanation for some of claimants’ extensive assets. As a result, the judge was apparently becoming frustrated and was losing his patience. Although the judge may not have displayed the utmost courtesy, being courteous is the ideal, not the requirement. What is required is that the parties receive a fair trial. Here, claimants have failed to show that the judge’s views controlled his decision-making process. Accordingly, we find that a new trial is not warranted on this basis. ISSUE XII Claimants argue that the trial court erred in denying their request for a jury trial. We disagree. The constitutional right to trial by jury under Const 1963, art 1, § 14 applies to civil actions at law that were triable by a jury at the time the constitutional guarantee was adopted. Wolfenden v Burke, 69 Mich App 394, 399; 245 NW2d 61 (1976), citing Conservation Dep’t v Brown, 335 Mich 343; 55 NW2d 859 (1952). Because there was no right to a jury trial in equitable matters, matters in equity are not entitled to jury trials unless so preserved or created by the Legislature. Wolfenden, supra, p 399; Thomas v Steuernol, 185 Mich App 148, 155-156; 460 NW2d 577 (1990). The forfeiture act does not indicate a right to a jury trial in forfeiture actions. Because a forfeiture action is equitable in nature, we find that the Legislature’s failure to grant the right to a jury trial in forfeiture matters makes the right unavailable. ISSUE XIII Claimants argue that the trial court erred in ordering forfeiture of accounts owned by Rashawn Hawkins, Rodericka Hawkins, Ryan Hawkins, and Robert Hawkins, Jr., because there was no evidence linking the accounts to drug transactions. Claimants argue that the trial court erred when it asserted that the minor children’s claims were purely "derivative” without any finding of consent or knowledge by the minor claimants. We find that the trial court did not clearly err in finding that the accounts should be forfeited. See MCR 2.613; In re Forfeiture of $5,264, supra, p 260. This case was based on a net-worth theory. It was the contention of the prosecutors that claimants were living well beyond their legitimate income. Because there was no adequate explanation for the $25,000 in each child’s account other than being proceeds of drug transactions, forfeiture was warranted. Claimants cannot circumvent forfeiture laws merely by depositing the drug proceeds in their children’s accounts. Claimants further argue that the trial court erred in forfeiting the children’s accounts because they date back to more than two years before this action was commenced and, therefore, the two-year period of limitation was violated. However, as discussed above, we find that no error occurred in . this regard. Affirmed in part and reversed in part. Griffin, P.J., concurred. A federal criminal prosecution was also initiated against Robert Hawkins as a result of Ulmer’s statements and the search of the claimants’ house. According to claimants’ brief, Robert Hawkins was ultimately convicted of possession with intent to distribute cocaine, possession of firearms in the course of a drug trafficking crime, and being a felon in possession of firearms. He was sentenced to a federal prison, where he currently resides. The court records apparently reflect that the settlement amount was $750,000. Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). The people argue that § 5809 is inapplicable, that the prompt filing requirement of MCL 333.7523; MSA 14.15(7523) applies, and that, because the action was promptly filed, claimants’ argument is without merit. Section 7523 provides that "[i]f property is seized pursuant to section 7522, forfeiture proceedings shall be instituted promptly.” However, the prompt filing requirement refers to the time an action must be commenced after seizure. In support of our conclusion that the two-year period of limitation is applicable, we note that the Michigan Legislature adopted our forfeiture provisions modeled, in part, after the federal forfeiture statute. In re Forfeiture of $5,264, supra, pp 255-257. The federal forfeiture act provides for forfeiture actions to be filed promptly after seizure. 21 USC 881(b). Nevertheless, the federal courts apply the five-year general period of limitation for forfeiture actions. United States v One Parcel of Real Property Known as 2401 S Claremont, Independence, Missouri, 724 F Supp 670, 673 (WD Mo, 1989). Because the two statutes are in pari materia and can be construed harmoniously, they shall be. Gooden v Transamerica Ins Corp of America, 166 Mich App 793, 804; 420 NW2d 877 (1988).	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Memorandum Opinion. Defendant pleaded guilty to unarmed robbery and he appeals. A motion to affirm has been filed by the people. Upon an examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm is granted.	[ 74, 27, 7, 17, -21, 15, 33, 37, -23, 77, -33, -10, -57, -5, -36, -12, 41, -19, 50, -62, -35, -29, -20, 11, -5, -37, -22, 34, 0, 40, 32, 13, -32, -5, 14, -35, -24, 18, -9, 13, -20, 34, -6, 56, -74, 2, -18, -42, -40, -18, 29, -13, 6, -24, -9, 21, -29, 6, 39, 32, 34, 43, -19, 16, -31, -15, -11, -19, -23, -16, -39, 11, 9, -5, 15, 41, 54, 68, -26, 29, -14, 17, 2, 6, 11, -36, 32, -29, 23, -47, 48, -5, 0, -28, 23, 2, 11, -27, 50, -32, -62, -38, 2, -7, -11, -16, -32, -18, 81, -46, -41, -24, 5, -52, -52, -34, 25, 15, -44, -67, -26, 19, 57, 81, 16, -14, 6, -10, -40, 13, 11, 47, -37, 34, 19, -30, 23, -26, -22, 22, -29, 28, 58, -12, -15, 18, -12, -53, 3, 61, 22, 6, -92, -31, -7, 15, -20, -40, 10, 28, -40, 9, -30, -28, 23, -3, -15, -11, 18, -39, -64, -44, 76, -7, 33, 15, 5, 30, -26, 15, 21, 63, -33, 4, -24, 43, -61, 9, 32, -87, -55, 74, -11, -31, 59, -12, 19, 2, 33, 7, -16, -3, 17, -34, -31, 31, -63, -22, 13, -4, 35, 5, -56, -9, 24, -37, 23, -24, 0, 44, -52, -20, -3, -16, -9, 16, 14, 37, -66, -2, -9, 10, -22, -39, 24, 15, -6, -38, 78, -29, -54, -26, 56, -37, 6, -20, 27, 8, 16, -36, 17, 67, -36, 25, -20, -34, 51, 23, -77, 27, -21, 34, 25, 35, -72, 46, -25, 15, -67, 41, 39, -5, 11, 56, 65, 46, -77, 17, -3, -19, 8, 4, 23, -11, -52, 33, 0, 9, 51, 0, 56, 13, -24, 28, 44, -22, -27, 46, -75, 3, 47, -4, -25, -32, -13, 39, 19, -64, -41, -19, 82, 79, -21, 21, -8, 11, 7, -1, 9, 6, -41, -1, 16, -65, 15, 0, 49, -42, 20, -15, -34, -34, -29, -18, -2, 87, 18, 11, 21, 8, 16, 3, 24, -32, -29, 30, -22, 12, -24, 14, -30, -22, -13, -43, 15, -34, -24, 12, 10, -15, -13, 28, 39, -19, 51, 30, -24, 10, -15, 6, 6, -64, -13, -31, -68, -12, 30, -50, -34, -7, -28, -70, 32, -14, 35, -3, 25, -13, -9, -23, -55, -24, -14, -88, -29, 17, 32, -30, 45, -27, -40, 3, 24, -4, -17, -13, -31, -24, 45, 50, -10, 37, -8, 30, -13, -29, -14, 26, 53, -28, -39, -54, -22, -5, 23, 20, -10, 16, 15, -41, -52, 8, -14, -4, 0, 38, 19, -10, 20, 1, 5, -10, -17, 34, -49, -29, -71, 9, 26, -15, -3, -12, 13, -76, 33, 48, 29, 51, 40, -19, 28, 32, 23, 18, 43, -3, -63, 8, 45, -6, -1, 10, -2, -23, -7, 2, 6, 13, 6, 29, 2, -16, 0, 11, -7, -27, 12, 0, 19, -3, -28, 22, 48, 0, -26, 5, -47, -22, 3, -28, -65, 17, -40, -17, 14, 60, -22, 32, 51, 29, -31, 42, -30, -18, 4, -18, 3, -31, -44, 56, 27, -28, -4, 25, -12, 9, -27, -22, -40, 24, 26, -68, -16, 12, 19, 23, -40, 4, 37, 16, -21, -3, 6, -9, 15, 40, 13, 45, 34, 33, 2, 43, -5, 49, -28, 4, -1, 10, 14, -60, 0, -2, 43, 44, -24, -24, -23, -10, 0, 0, 21, -10, 2, 18, -8, -46, 18, 27, 59, 14, 20, 50, -26, 27, 2, -18, 37, -5, -15, -22, -61, 23, 51, -41, -74, -25, -38, -4, 20, 31, 12, 26, -81, -10, 27, 2, 36, 7, -36, -88, 49, -46, -14, 39, -39, 0, -14, 32, -13, -1, -7, 11, 16, -10, 0, -83, -20, 19, 25, 16, 4, -34, -16, -18, -58, 65, -41, 31, -64, -8, 0, 70, -17, -38, 26, -29, -26, -15, 22, 36, 22, 23, 4, -32, 22, -6, 0, 78, -15, -32, 1, 36, -38, 8, 17, 51, 22, -26, 54, 35, -14, 1, -26, 0, 40, 60, 35, 11, -5, -10, -5, -27, 15, 17, -4, -42, 64, 13, -29, -3, -17, 59, 44, -38, 6, -10, 59, 53, -1, 38, 35, -33, 9, 16, 37, -55, 4, 0, -28, 31, -50, 14, -31, 65, 0, -61, -67, -46, 14, -2, 4, 16, 23, 29, -11, 12, 36, 13, 71, 3, 5, -68, 54, 11, 33, 12, 15, -14, 45, -16, -4, 2, -1, -50, -21, 43, -7, 20, 22, -28, 75, -49, -22, 35, 16, 29, 51, -70, 23, 57, -31, -9, -16, -11, -46, 20, -34, 47, 8, 17, -37, -16, 11, -7, -72, -4, -11, -41, 82, 29, -20, -35, 8, -4, 30, -39, -60, -61, -46, -42, 0, 23, -49, 49, 55, 45, 43, 0, -10, 12, -49, -57, 28, -2, 15, -11, -14, 60, -3, -1, 20, -27, -28, -42, 9, -1, 60, -26, -11, -68, 0, 23, 20, -13, -1, 22, 34, -30, -9, -38, 7, -57, -8, 32, -40, -23, 47, -52, 31, 19, -12, -21, 13, 3, 17, -19, -17, -20, 10, -13, 72, -29, -38, -32, -7, -16, -15, 24, -14, -67, 62, 62, -15, 1, -15, -10, -11, -36, 13, -5, 34, -11, -26, 17, 24, 21, -12, 9, -31, 4, 23, -30, 19, -3, 20, -35, 1, -35, -28, -30, 7, 13, -35, 40, 2, 10, 56, -40, -5, 49, 35, 22, 10, 38, 70, -9, 45, 41, 16, 41, 26, 21, 68, -40, -6, -5, 6, -67, -7, 4, -12, 46, 42, 12, 50, -47, 14, 11, -11, -29, 13, 49, 42, -73, 2, -5, 32, -35, 12, 42, -19, -13, -66, -4, 6, -32, -57, -2, -26, -26, -10, -18, -83, -10, 52, -43, 47, 51, -43, 8, -21, 34, -59, -54, 32, 16, -11, 6, 32, 26, 29, -9, -36, -4, 24, 11, 1, -63, 0, 28, 40, -64, -23, -56, -13, 17, 10, 41, 19, -17, 60, -16, -18, -17, -30, 11, 22, -53, -9, -12, -39, 17, 15, -8, -16, 6, -24, 5, -73, 35, -7, -14, 31, 13, 13, -21, -25, -26, 45, 45, -21, -13, -3, 37 ]
O’Hara, J. This is an appeal from a summary judgment entered in favor of defendant city. Plaintiffs appeal of right. The issues pleaded, the defenses raised, the motions made, the affidavits filed in opposition and support thereof, and the admixture of alleged conflict between the legislative and executive branches of defendant city suggests a controversy of great complexity. As we view it, on appeal at least, the issue is extremely limited. Though appellants assign eight claims of error, we think in the composite they amount to two. (1) On the basis of the complaint, the answer, the exhibits and motions, and the affidavits pro and contra, was summary judgment properly granted? (2) Did plaintiff Detroit-Windsor Teleferry, Ltd., have standing as a party plaintiff? This is how it all came about. In October of 1956 plaintiff AmeriCanada TeleFerry Company, a Dela ware corporation and defendant city, a municipal corporation, executed a document which is entitled “Lease”. It contains an impressive number of signatures; the Controller of defendant city, the Director of the Civic Center Commission (a sort of offshoot of the municipal corporation exercising some measure of control over real estate owned by the city, but subject to continuing control by the common council), the president of plaintiff corporation, AmeriCanada, and the city clerk as the executing amanuensis of the Detroit Common Council. That it binds both parties there can be no doubt. What, if anything, it binds them to is another matter. The city, by its Corporation Counsel, drew the lease. Perforce, it must be construed the more strictly against the city. The instrument purports to lease to plaintiff AmeriCanada, city-owned land for a “Teleferry Building Site” and a “Pylon Site”. The involved land was subject to some measure of delegated control by the Civic Center Commission. The idea was that the lessee would finance and construct an aerial high-wire ferry connecting Detroit and Windsor. During the period of construction, the contractors were to pay the city for 45 parking spaces at 50 cents per day. When construction was completed, this portion of the lease was to terminate. Thereafter, and commencing on the “operational date of the facility”, the lessor was to pay a minimum annual rental of $25,000, and a sliding scale of percentages of gross revenue ranging from 12% to 35%. There were elaborate requirements for bookkeeping, turnstile counts, and audit procedures. One detail seems to have been overlooked or intentionally omitted. No date was set upon which the aerial device had to be completed. As far as we can glean from the record, the parking lot fees were never paid. Construction however was never begun. It cannot be gainsaid that the lessee expended time, effort and money, to be exact $162,000, in preliminary surveys and obtaining permits of one sort or another including presidential approval. As this aspect of the project went on (for four years at least), financing difficulties seemed to have been encountered. But finally, so plaintiffs claim, financing was guaranteed by Swiss financiers and the city council was approached again. After a study by the city’s Auditor General, the Corporation Counsel (city attorney) was ordered to prepare an instrument that would be more specific than the one previously mentioned herein and submit it to the council. We quote the resolution dated November 6, 1969. “Resolved, That the Corporation Counsel be and he is hereby authorized and directed to prepare a lease between the City of Detroit and Americanada Teleferry Company based on the analysis of the Auditor General indicating the guidelines for said proposed negotiated lease which shall be subject to review and approval of the Common Council # # * (Emphasis supplied.) It has been stipulated that for some unspecified refason, the Corporation Counfeel never prepared the lease which the resolution directed him to. In obvious consequence the council never did review and approve or disapprove it. This gave rise to plaintiffs’ prayer for mandamus in addition to specific performance and money damages. While this apparent city legislative-executive stalemate continued, the lessor wrote the Civic Center Commission as follows: “22 January 1969. “Secretary Civic Center Commission “1 Washington Blvd., Detroit, Michigan “Dear Sir: “We are the developers of the AmeriCanada TeleFerry, the aerial cable tramway system intended to link Detroit and Windsor across the Detroit River. We have obtained all of the necessary licenses, permits and leases from the various federal, municipal, and state governments, both in USA and Canada. For financial reason however, we cannot proceed with our project. “We are convinced that for the next few years it will not be possible to develop the AmeriCanada TeleFerry by private capital. Our efforts, including private financing as well as public stock issue, were not successful. We feel that it can indeed be a successful venture if it is sponsored by a suitable governmental agency. We therefore would like to relinquish our control of the company to the Civic Center Commission. “When can we present our offer in person before the Commission? All we want in return is the return of our dollar investment plus a modest finder’s fee for obtaining the necessary documentation, which I repeat is 100 percent complete. “Cordially, “AMERICANADA TELEFERRY COMPANY “/s/ George H. Amber “George H. Amber, President.” Nothing seems to have happened in the way of a written response to this letter. On March 20, 1970, plaintiffs filed their complaints seeking, as herein-before noted, mandamus, specific performance and money damages. The city countered, alleging nonperformance, lack of mutuality of obligation, abandonment, breach, unenforeeability and nonliability generally. The able trial judge applied himself diligently to the matter and favored us with a comprehensive opinion. In substance he held: (1) The letter of January 22 to the Civic Center Commission was in fact a confession of inability to proceed under the original contract, hence that the city was relieved of its obligations, if any, thereunder. (2) Mandamus did not lie because no clear legal duty to perform a specific act was established and because no mutuality of obligation arose from the terms of contract and thus specific performance could not be compelled. (3) The plaintiff, Detroit-Windsor Teleferry, Ltd of Windsor, was neither an assignee, nor a third-party beneficiary and that it had no direct contractual relationships with defendant city, and thus was without standing as a party plaintiff. In this case, as in all summary judgment matters, our scope of review is extremely limited. It is not to our purpose whether plaintiffs could sustain their cause of action, but only whether on favorable view to them they pleaded one, and that when issue was joined a genuine issue of material fact was raised. We think there was. To make our position clear, we must depart somewhat from the format of the trial judge’s finding in order to reach a question which he did not answer explicitly. This, we think is by reason of his holding that the letter of January 22, 1969, constituted a complete abandonment by plaintiffs. Still we are troubled to some degree by the fact that the original lease contained a proviso that certain of the obligations upon plaintiff AmeriCanada would not apply until “the facility became operative”. As we mentioned earlier, no time within which plaintiff had to make it operative was included. We believe the trial judge reasoned that if the abandonment was in fact certain and unequivocal, the foregoing point became moot because if the city had any obligation under the agreement it was extinguished by the abandonment or breach or both by plaintiffs. We cannot agree however that abandonment or breach by plaintiffs could be determined as a matter of law by summary judgment. The letter relied on concludes with this inquiry: “When can we present our offer in person before the [Civic Center] Commission?” We are unable to find any definite answer to this inquiry. We read the question together with the express resolution of the Common Council directing (as the charter of the city provides) the corporation counsel to “prepare a lease * * * indicating guidelines for said proposed negotiated lease which shall be subject to review and approval of the Common Council” to require some action or explanation for the inaction by the city. (Emphasis supplied.) A question of fact as to just what the parties did intend was created. We are well aware that this letter was sent to the Civic Center Commission and not the city itself. But the sword of the abandonment or breach letter must surely out both ways. If the letter, directed to the commission, was sufficient to relieve the city of its obligations, it must be considered under a proper finding of fact as sufficient to continue the city’s obligation if it did not constitute abandonment. We think the whole complex relationship of the parties in this regard requires testimony to afford a basis for finding's of fact. We cannot agree the issues could have been resolved as a matter of law. Since we are compelled to vacate the summary judgment on the foregoing issue, we do not pass on any of the other questions which may be affected by findings of fact including the claimed lack of mutuality of obligation as they might bear on the propriety of the remedy of specific performance. We mention that Reinink v Van Loosenoord, 370 Mich 121 (1963), seems to have diluted the former requirement that specific performance be available to both parties before it can be enforced as to one. Neither do we pass upon the issue of standing of plaintiff Detroit-Windsor Teleferry, Ltd, nor the propriety of mandamus as sought by plaintiffs. These also we think involve issues of fact. We express no view on the question of the entitlement of plaintiffs to money damages, but we do observe that the claimed letter of abandonment makes some reference to a “finder’s fee” due plaintiffs. The term, as far as we can determine, is a stranger to the pleadings and to the whole record. We consider the holding of the trial judge, that plaintiffs in addition to abandoning the project also breached certain performance requirements imposed on them, was prematurely made and should be determined in the factual context of the case as developed by testimony. In finality, we find and hold that there are genuine issues of material fact raised by the pleadings and motions and by the affidavits in support thereof, outside and beyond the stipulation of fact. The summary judgment is vacated. The cause is remanded to the trial court for further proceedings. Appellants may tax the costs of this Court. Costs in the court below will abide ultimate disposition of the case in chief. All concurred. Wolverine Upholstery Co v Ammerman, 1 Mich App 235 (1965); Dudley v Rapanos, 353 Mich 237 (1958).	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Per Curiam. Defendant was convicted by a jury of the crimes of indecent exposure and taking indecent liberties with a child under 16 years of age. During cross-examination, the prosecutor asked the defendant if he had ever been arrested. After an affirmative response, the prosecutor asked what the charges had been. The court ruled, over the defendant’s objection, that the questions and answers were admissible for the purpose of impeaching the credibility of the witness. The defendant then testified that he had been arrested on another charge of indecent exposure contemporaneous with his arrest in the present action. The charge in the other case was dismissed. This Court held in People v Brocato, 17 Mich App 277 (1969), that a defendant, testifying at his own trial, may not be asked if he has been arrested or charged with a crime where the arrest or charge has not resulted in a conviction and where the only purpose of the question is to impeach the defendant’s credibility as a witness. For that reason there must be a new trial. Reversed and remanded. MCLA 750.335a; MSA 28.567(1). MCLA 750.336; MSA 28.568.	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Weaver, P.J. Following a conviction, an appeal, and a new trial, defendant was convicted of murder in the second degree, MCL 750.317; MSA 28.549. Defendant appealed his second conviction and sentence of 75 to 150 years to this Court. The conviction was affirmed, and the Court found that defendant’s sentence did not shock the judicial conscience. People v Armentero, 148 Mich App 120; 384 NW2d 98 (1986). Defendant’s application for leave to appeal to the Michigan Supreme Court was denied on July 29, 1986. People v Armentero, 425 Mich 883 (1986). On October 26, 1987, defendant’s petition for a writ of habeas corpus was denied by the United States District Court. The Sixth Circuit Court of Appeals affirmed the denial of the habeas petition on August 4, 1988, and the United States Supreme Court denied defendant’s petition for a writ of certiorari on December 5, 1988. On August 29, 1989, defendant filed a delayed motion for resentencing in Detroit’s Recorder’s Court, on the basis of the decision of People v Moore, 432 Mich 311; 439 NW2d 689 (1989). After hearing arguments, the court ordered that defendant be resentenced, finding that Moore applied retroactively. The prosecution now appeals the trial court’s decision to this Court. We reverse. The primary issue before us is whether the sentencing rules set out in Moore are to be applied retroactively. Moore itself does not state the extent to which it is to be applied retroactively. Our Supreme Court has held that the factors to be used in determining if a law should be applied retroactively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971). In another case dealing with the indeterminate sentencing act, the Supreme Court relied on the principles set out in Hampton to hold that the decision was prospectively limited to "those cases in which sentence is to be or has been imposed after date of filing of this opinion and to those cases which on date of filing of this opinion are pending on appeal and which have properly raised and preserved the issue for appeal. Sentences imposed prior to date of this decision and not pending on appeal upon properly preserved specific issues shall not be affected by the rule herein adopted.” People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). We find that the rule enunciated in Moore should be given the same limited retroactive effect. Thus, because defendant’s case does not fall within these restrictions, Moore is not applicable to his sentence. We reverse the order allowing resentencing and order defendant’s previous sentence of 75 to 150 years reinstated. Reversed._ In People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), the Court held that any sentence that provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentencing act.	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Per Curiam. Defendant was convicted of attempted breaking and entering with intent to commit larceny, contrary to MCLA 750.92; MSA 28.287 and MCLA 750.110; MSA 28.305, and sentenced to serve a term of three to five years. On appeal, defendant contends that the trial court committed reversible error by admitting testimony, over defense counsel’s objection, concerning defendant’s disposal of a gun from a car just prior to his apprehension. It is argued that said testimony was irrelevant and highly prejudicial. At trial, a city policeman testified: “Q. What, if anything, unusual happened then? “A. Well, as it — after the Buick had turned north on Saginaw Street at that time, we were directly behind it— excuse me for a second— “Q. How far were you behind it, if you recall? “A. About a half block. And, as we got into the 35 — between 3500 and 3600 block of Saginaw— North Saginaw Street — we observed Mr. Otler, who was sitting in the passenger side of the vehicle, holding his — stick his arm out the window, and he had a .38-caliber Derringer and he dropped it onto the street, and the weapon discharged as it hit the street. “Q. Are both occupants of that car present in the courtroom today? “A. Yes, they are.” Defense counsel objected to this testimony as being irrelevant to the charge before the trial court, but the latter allowed it to stand, on the ground that it was part of what was observed by the witness. Testimony regarding defendant’s possession and disposal of the gun was also admitted at other points in the trial, but no objections were raised at such times. Codefendant Joseph Neal testified: “He looked at me and told me to speed up, leave them, and I said, ‘Leave them, for what, man, you talk like you want to go to jail.’ I said, ‘I ain’t got no driver’s license,’ and he pulled the gun out, and then throwed it out the window, and when the gun hit the sidewalk, it went off.” The people answer that the trial court properly overruled defendant’s objection regarding the admission of testimony concerning defendant’s disposal of a gun on the grounds that such testimony was part of the res gestae of the crime for which defendant was being tried, in that it was part of the events which transpired from the time of the crime to the apprehension of defendant, a matter of minutes. “It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to. show the commission of another crime.” People v Savage, 225 Mich 84, 86 (1923). An examination of the record and briefs discloses no prejudicial error denying Otler any sub stantial right. People v Andriacci, 11 Mich App 482 (1968) (leave denied, 381 Mich 784 [1968]); People v Henderson, 25 Mich App 28 (1970). Affirmed.	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Per Curiam. Defendant Horace McDaniels was convicted by a jury of armed robbery, MCLA 750-.529; MSA 28.797. He appeals as of right. On appeal defendant charges that the trial court erred in failing to instruct the jury on. lesser included offenses. In People v Stevens, 9 Mich App 531, 533-534 (1968), this Court stated: “Where a request has been made to charge on a lesser included offense, the duty of the trial judge is determined by the evidence. “If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v Jones (1935), 273 Mich 430.” In the case at bar, the defendant in the first instance, during a conference on jury instructions, effectively waived instructions on lesser included offenses. After the conference, court adjourned until the following day. The next morning, before the jury retired to deliberate, defendant changed his position and requested that the jury be instructed on lesser included offenses. The trial court denied this request. Had no more transpired, a denial of this request would require reversal, as the record shows no weapon was found upon the defendant at the time of his arrest which occurred immediately after the robbery and at least two witnesses testified that they saw no weapon upon the defendant. The evidence was sufficient to entitle defendant to a charge on lesser included offenses. However, approximately an hour after the jury retired to deliberate, the jury sent the court a note asking “Are we to decide whether it was armed robbery only?” Thereupon the court ordered the jury returned to the courtroom and the foreman of the jury was asked to explain what the note meant. He stated: “There was a discussion between two of the jurors,' or maybe three, as to what it — whether we had to find whether it was an armed robbery, or a robbery, or not guilty. Is that clear enough, sir?” The court thereupon restated its prior instruction as to possible verdicts which excluded lesser included offenses from the jury’s consideration. When the jury retired to resume its deliberations the trial judge placed on the record his reasons for not altering his charge. The court stated as follows : “The Court: The jury having retired, and the counsel present and the defendant present, I think we should put on the record that subsequent to receiving this note from the jury the court indicated that it would consider giving the jury an additional charge telling them what the statute was and also giving them an option that they could bring in the included offense of robbery unarmed, but that counsel for the defendant, after consultation with his client, did indicate that he would go along with the charge as originally given by the court. Is that correct, Mr. Crockett? “Mr. Crockett [for defendant]: Absolutely, your Honor.” The jury returned two hours later and informed the judge they were deadlocked. Following additional instructions on matters not pertinent to this issue, the jury again retired. Subsequently, defendant was found guilty of armed robbery. The integrity of this trial could have been preserved by the court, following the jury’s inquiry, had the court given an added charge on lesser included offenses. However, the defendant specifically rejected the necessary curative instruction on lesser included offenses, chosing to abide by the original instruction in the hope of obtaining an acquittal on the armed robbery charge. This decision was based on the trial strategy of the defense. Obviously the defense read the problems of the jury as an indication that certain members of the jury had eliminated the armed robbery charge and consequently they would return a verdict of not guilty if they had no lesser included offenses to consider. Where, as here, the ultimate error is occasioned by a defense trial tactic which failed, the defendant cannot rely on this error to set aside a jury conviction. Defendant also raises several other issues for the consideration of this Court, all of which are totally without merit. Affirmed.	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Memorandum Opinion. Defendant was convicted of larceny by trick, a violation of MCLA 750.356; MSA 28.588. On appeal defendant complains that the form of the jury verdict was improper. The jury was properly polled and defendant did not object to the form of the verdict and presents no evidence that the form of the verdict was injurious to his rights. Defendant next argues that the trial court erred in admitting evidence of a former offense under MCLA 768.27; MSA 28.1050, because the former offense was too remote in time to be relevant to the present offense. The offenses are sufficiently contemporaneous in time and analogous in circumstance to justify the trial court in admitting the evidence. People v Fleisb, 306 Mich 8 (1943). A review of the record reveals that the jury’s verdict is more than amply supported by the evidence. Defendant’s assignments of error are insubstantial. Affirmed.	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Quinn, J. Plaintiff’s petition for a hearing with the Workmen’s Compensation Department alleged that her husband’s death from lung cancer was caused by exposure “to harmful and irritating fumes and other materials at work” while in the employ of defendant. The referee found for the plaintiff and awarded compensation benefits. On appeal to the Workmen’s Compensation Appeal Board, this award was reversed. On leave granted, plaintiff appeals. Evidence introduced before the referee indicated that plaintiff’s decedent was born January 1, 1935, and began working for defendant in November 1954. Further, that although he smoked 1-1/2 to 2 packs of cigarettes daily most of his adult life, he had no respiratory or lung problem prior to October 1966, and that he died of lung cancer March 27, 1967. Decedent was employed as a Hi-Lo truck driver and worked iíi a building 300 to 400 yards square. The building contained machinery and 80 to 90 HiLos, some of which operated on batteries and some on liquid propane. For seven or eight years prior to decedent’s death, about 75% of the Hi-Los were propane-powered. Most of the time, decedent operated a battery-powered Hi-Lo. There was evidence before the referee that when the propane-powered motors were not functioning properly, they gave off more exhaust fumes; that complaints were made about the fumes which resulted in the repair of the offending motors. Further testimohy indicated that the building smelled of exhaust fumes resembling automobile exhaust fumes, and that the union had negotiated for a better ventilating system. The deposition of plaintiff’s medical expert was introduced before the referee. The hypothetical question put to this expert as a basis for his opinion on causation described the Hi-Lo as a “gasoline motor machine”. The expert’s opinion was that the exhaust of gasoline motors, especially when not functioning properly, contributed definite amounts of cancer-producing chemicals, and that the main causal factors active in the deceased’s development of lung cancer were the carcinogenic materials inhaled from the forklift’s (Hi-Lo) motor exhaust. The deposition of defendant’s medical expert was also introduced before the referee. The hypothetical question on which he based his opinion referred to Hi-Los as “gasoline motor type operated or propane gas type operated”. He testified generally that he knew of no evidence that cancer of the lungs was caused by exposure to exhaust fumes, and that the cigarettes were the most likely cause of the cancer. Defendant filed a supplemental brief with the appeal board April 5, 1971 to which were attached several exhibits that were not before the referee. These exhibits were technical papers and newspaper articles indicating that propane is a low emission fuel. On appeal, plaintiff attacks the submission of these exhibits that were not in the record“before the referee. In its opinion dated May 13,1971, the appeal board held in part: “Plaintiff presented the testimony of a certified specialist in pathology and preventive medicine. In answer to a hypothetically posed question the doctor opined a causal relationship between an exposure to ‘gasoline exhaust fumes’ and the development of lung cancer. Defendant presented the testimony of an internist and cardiologist who states that he treats patients with lung and other types of carcinoma. This doctor expressed the opinion that the death of deceased was in no way related to the conditions of his employment by defendant. We believe that defendant correctly points out that plaintiff’s medical is premised upon facts not disclosed by the record of proofs. Plaintiff’s medical theory was based upon an exposure to gasoline exhaust fumes, a fact not disclosed by the proofs submitted. Deceased was exposed to the exhaust of Hi-Los which burned propane gas. The extent of this exposure is in dispute and we are of the opinion that the weight of evidence shows that deceased himself drove an electrically-powered Hi-Lo approximately 75% of the time which did not even burn propane gas. The only exposure he would have to the exhaust from the trucks which burned the propane gas while he was driving the electrically-powered truck would be from trucks which were driven by other employees in what was described as an extremely large, high and well ventilated building. Whether the exhaust of trucks which bum propane gas are identical to the exhaust which burn gasoline is not disclosed by the proofs before us. Prom newspaper reports it would appear that modern day ecologists do not believe that the exhausts are the same. The failure to show an excessive exposure to gasoline fumes, the fact that it was áhown that he personally drove an electrically-powered truck a large percentage of the time, the defect in the medical testimony which is premised upon excessive exposure to gasoline exhausts, the admitted excessive cigarette smoking Habit of the deceased, the rather multiple lymph node involvement, all tend to make the referee’s finding too speculative to warrant affirmance here. We hold that the plaintiff has failed to meet her burden of proof to show that the death of her husband was due to causes and conditions to which he was exposed while employed by the defendant. The order of the referee is, therefore, reversed and compensation is denied.” (Emphasis supplied.) Plaintiff states the issues on appeal as: “I. Where the Workmen’s Compensation Appeal Board receives evidence without affording a party a hearing pertaining to the admissibility of such evidence, has the aggrieved party been deprived of due process of law? “II. Where the Workmen’s Compensation Appeal Board has relied on inadmissible evidence, is an award entered pursuant thereto supported by the record?” We note a third issue which we deem controlling and which we consider first. It is: “Did the exhibits attached to defendant’s supplemental brief cause the Workmen’s Compensation Appeal Board to reverse the hearing referee?” Plaintiff bore the burden of proof to establish her claim, Levanen v Seneca Copper Corp, 227 Mich 592 (1924). The hearing on appeal from the referee was a de novo hearing, Fawley v National Lead Co, 342 Mich 100 (1955), and plaintiff had the burden of proving her claim before the appeal board. The above quotation from the opinion of the appeal board establishes six facts (underlined) as the basis of its opinion that plaintiff had not met this burden. Not one of these facts relates to the evidence challenged by competent, material, and substantial evidence on the whole record. This analysis obviates discussion of the two issues raised by plaintiff. Affirmed with costs to defendant. All concurred.	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Targonski, J. Plaintiff was employed by defendant as a building superintendent of the Metropolitan Building, an office building in the City of Flint. Plaintiff, his wife, and son lived in the building in a five-room apartment which defendant provided. Plaintiff was required to be on call, more or less, 24 hours per day for security purposes. His duties were to supervise and direct the independent maintenance firm which was employed by defendant to clean the building. Plaintiff was also required to see that the doors of the building were locked at night and unlocked in the morning. He was required to inspect the work after the independent cleaning contractors left the building. He was hired to be there in case of an emergency and to take whatever steps would be necessary in an emergency to' protect loss to the building. A residential manager was employed by defendant who took care of leases, book work, and hiring for the building. The heating system and elevators in the building were automatic and were maintained under a contract with an outside firm. Major electrical and plumbing work was done under contract with outside tradesmen. Plaintiff was not required to do any physical work in the building. Physical work was either done by other employees of defendant or was contracted out. In the evening plaintiff was pretty much free to do as he pleased as long as the various systems of the building were running properly. During the daytime of December 30, 1968, plaintiff left defendant’s building to take his laundry to a laundromat because there were no laundry facilities within defendant’s building. Plaintiff left the building by a main entrance and walked along a public sidewalk to a driveway adjoining the building on the south side. The driveway was owned by Consuméis Power Company. While walking along the drive way to a parking area maintained by defendant, where plaintiff had parked his car, plaintiff slipped and fell on the icy surface and fractured his left hip. The place where plaintiff fell was not on the property owned, occupied, or maintained by the owner of the Metropolitan Building. There was an alternate route to the parking lot, of equal distance, which traversed a public sidewalk and a parking area which was maintained free of ice and snow by defendant. Testimony of plaintiff and his wife showed that they usually left the building and went to their car in the parking lot along the private drive owned by Consumers Power Company. Prior to the date of hearing, plaintiff had recovered from his injuries sufficiently to be capable of doing the work he had been doing prior to the accident, although his injuries still hindered his capacity to perform in other areas of employment. He had applied for similar jobs after being discharged by defendant. He said that he was capable at the time of managing an apartment building and actively sought apartment managing or supervision as employment. He was unable to obtain such employment. On November 14, 1969, a hearing was held. Three days later, the hearing' referee issued a decision and order which found that plaintiff did receive a personal injury which arose out of his employment and was totally disabled at the time of the hearing. On August 10, 1970, the Workmen’s Compensation Appeal Board affirmed the referee. Leave to appeal was granted. On appeal defendant raises two issues. Defendant contends that plaintiff’s accident and injury did not arise out of and in the course of his employment. Further, defendant contends that plaintiff was not entitled to compensation benefits after the date of the hearing. In examining the first issue raised', of whether the injury arose out of and in the course of employment, we must ascertain whether the injury falls within the scope of MCLA 412.1; MSA 17.151. To answer this, two problems must be decided; (1) whether plaintiff was on the “premises” when the injury occurred, and (2) whether the personal errand could be considered “arising out of and in the course of his employment” ? The problem of whether plaintiff was on the “premises” when the injury occurred can be resolved in view of Jean v Chrysler Corporation, 2 Mich App 564 (1966), and Fischer v Lincoln Tool & Die Co, 37 Mich 198 (1971). In Jean, p 568, an injury upon a public roadway lying between the employer-owned parking lot and his place of business was held to be compensable. Our Court stated: “ * * * that the employee who leaves work and within a reasonable time is injured in reaching other premises maintained by his employer as an adjunct of the employment is covered by the act.” In Fischer, the plaintiff was injured on a public sidewalk while walking toward his employer’s place of business from his car which he had parked on the street. This Court held that an employee injured upon a public sidewalk while on his way to work and while within a close proximity to the place where he works suffers an injury which is compensable as arising out of and in the course of his employment. In discussing what construction should be given the word “premises” as contained in MCLA 412.1; MSA 17.151, this Court said: “ ‘Premises’ does not equal ‘property’, and land owned by an employer may or may not be part of the premises, just as land owned by another than the employer might still be considered part of his premises.” After discussing’ Lasiewicki v Tusco Products Co, 372 Mich 125 (1963), and Jean v Chrysler Corp, supra, this Court announced in Fischer, supra, p 203: “From an analysis of present case law we conclude that ‘zone, environments and hazards’ is substantially what is meant by the word ‘premises’ as contained in the workmen’s compensation act. “From the above, we can conclude that an employee is protected by the act when he is within said, ‘zone, environments, and hazards’, while arriving at, departing from, or' during the time of his employment by traveling his usual, customary and direct route.” Here, defendant provided the parking lot and gave plaintiff permission to use the lot, with plaintiff having to cross another’s property or walk on a public sidewalk to reach the lot. We are not concerned with whether the property, which was crossed, was privately or publicly controlled or whether more than one route was available; but in light of Jean v Chrysler Corp, supra, and Fischer v Lincoln Tool & Die Co, supra, we conclude that plaintiff was within the “zone, environments and hazards” of his labor so as to be considered on the premises of his employer in regard to MCLA 412.1; MSA 17.151. Having established that plaintiff was within the “zone, environments and hazards” of his labor or, in other words, having sufficiently satisfied the premises requirement in' MCLA 412.1; MSA 17.151, we must determine whether the errand can he considered to have arisen out of and in the course of employment. Both parties have conceded in their respective hriefs that plaintiff was a resident employee continuously on call 24 hours per day. The appeal board also came to a similar determination, saying: “Even without the presumption afforded by the 1954 amendment this case would be compensable because the proofs presented herein show that plaintiff was employed under a special type of contract of hire where the activities and duties imposed upon him by his employer clearly placed him at the point of peril at the time the injury occurred. The course of employment is not synonymous with scope of employment, but includes an employee’s administration to his own human needs, (Crilly v Ballou, 353 Mich 303 [1958]). Plaintiff’s trip to the laundromat under the circumstances disclosed by the proofs before us was a unique way of life in his working environment which was imposed upon him by the particular contract of hire existing between himself and his employer. We hold that the injury which plaintiff received did arise out of and in the course of the activities and duties imposed upon him by the contract of employment he held with the defendant herein.” With respect to resident employees continuously on call, the general rule is most aptly stated by Larson: “When an employee is required to live on the premises, either by his contract of employment or by the nature of the employment, as is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment.” 1 Larson, Workmen’s Compensation Law, § 24.00, p 421. See also, Favorite v Kalamazoo State Hospital, 238 Mich 566 (1927). Although this is the generally accepted rule of law, in the past some limitations were placed upon the on-call coverage on the theory that the activity was too distinctly personal to support an award. See Meehan v Marion Manor Apartments, 305 Mich 262 (1943). But the recent trend of Michigan law has been very liberal in expanding the coverage afforded an employee under the workmen’s compensation laws. Generally, an employee who is on a personal errand is covered by statute. Dyer v Sears, Roebuck & Co, 350 Mich 92 (1957); Lasiewicki v Tusco Products Go, supra. Even though these recent cases which have upheld an award to an employee who is on a personal errand differ from the present case because they did not deal with resident employees on call, but dealt with the more common employer-employee relationship of the employee being on the premises only for the purpose of working a specified shift, we feel they are representative of the current judicial and legislative attitude toward all workmen’s compensation laws in this state. Evidence of this can further be demonstrated by the prospective rule of law announced in Whetro v Awkerman, 383 Mich 235, 242-243 (1970), in which the Court states: “We hold that the law in Michigan today no longer requires the establishment of a proximately causal connection between the employment and the injury to entitle a claimant to compensation. * * * They [cases] have brought the law in Michigan to the point where it can be said today that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid.” Applying the preceding rationale, we find; that plaintiff falls within the general rule regarding a resident employee continuously on call. This being so, plaintiff’s injury, even though in pursuance of a personal errand, arose out of and in the course of his employment and is therefore within the scope of MCLA 412.1; MSA 17.151 and compensable. As to the second issue raised, defendant alleges that because plaintiff was not disabled at the date of the hearing from performing the duties of his employment that existed at the time of his injury, the appeal board erred in allowing compensation beyond that date. Defendant’s contention arises under MCLA 412.11; MSA 17.161, which says that an injury is not compensable unless it impairs the employee’s “earning capacity in the employment in which he was working at the time of the injury”. In the proceedings below the appeal board found that although plaintiff was probably capable of performing the duties of a building superintendent again, based upon the determination that plaintiff’s employment was in the field of unskilled labor and on account of his injury, plaintiff still was not physically capable of competing with able-bodied men in the total field of unskilled labor and, therefore, affirmed the award of compensation. Specifically, the appeal board found: inability to perform a specific unskilled job to which he may have been assigned at the time of his injury but it is dependent upon his inability to compete with others in the general field of labor where his injury occurred. Plaintiff admits that he probably could perform work where he would only be required to supervise others, but he has been unable to find such work elsewhere and defendant refuses to hire him. “The proofs show, the referee found, and this finding is here uncontested, that at the time of plaintiff’s injury he was employed in the field of unskilled labor. This is a field of labor normally referred to as common labor requiring no particular skill to perform and the field encompasses the whole spectrum of unskilled work. A common laborer’s right to receive compensation is not solely contingent upon his # * # “It is undenied that plaintiff’s proofs do show that plaintiff suffered serious injury which caused a state of disablement for a considerable period of time. Under these circumstances it is incumbent upon the defendant to either present medical evidence from which we can conclude that plaintiff has recovered sufficiently to compete with able-bodied persons within the total field where injury occurred, or show that work within plaintiff’s capacity to perform is available to him before an order can enter stopping or reducing compensation.” Upon review of an appeal board determination, this Court has the obligation to accept the board’s finding of facts if there is any evidence whatever to support the findings. Williams v Chrysler Corp, 29 Mich App 398 (1971). In examining the evidence presented before the appeal board, we find that there was a sufficiency of evidence to substantiate the board’s findings. Although there was no testimony as to whether plaintiff’s job was skilled or unskilled, the board can draw inferences from other facts established so that it could have made the finding (which was uncontested) that plaintiff was engaged in common labor based upon the type of activity involved, which was supervising the maintenance men and performing acts of security in the building. Meyers v Michigan Central Railroad Co, 199 Mich 134 (1917). We further conclude that the appeal board was correct in its interpretation of MCLA 412.11; MSA 17.161 to this situation. In applying that rule it has long been held that there are two classifications of employment—skilled and common labor (unskilled), with skilled labor divided into many separate skills. Kaarto v Calumet & Hecla, Inc, 367 Mich 128 (1962); Hutsko v Chrysler Corp, 381 Mich 99 (1968). Whether or not compensation is awarded often depends upon the classification of employment that is found to exist at the time of the injury. See, Kaarto v Calumet & Hecla, Inc, supra. In Kaarto the Court said, at 132: “Had plaintiff been engaged in common labor at the time of injury, he would be entitled to compensation benefits because his injuries prevent him from doing some common labor. Miller v S Fair & Sons, 206 Mich 360 [1919]; Smith v I Stephenson Co, 212 Mich 154 [1920]; and Wieland v Dow Chemical Co, 334 Mich 427 [1952].” Consequently, we hold that the appeal board, having determined that plaintiff was employed' in the field of common or unskilled labor at the time of his injury, properly ruled that plaintiff continued to be disabled because of a loss of earning power in the whole field of unskilled labor. Affirmed. Costs to appellee. All concurred. Defendant will be used throughout this opinion, even though there are two defendant-appellants, the employer and its insurance carrier. This statute has been repealed and has been replaced by MCLA 418.301; MSA 17.237(301). Applies only to Whetro v Awkerman, 383 Mich 235 (1970), and all claims for compensation arising after March 12, 1970. This statute has been repealed and has been replaced by MCLA 418.371; MSA 17.237(371).	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Blair Moody, Jr., J. Plaintiff Camelot Excavating Company (hereafter Camelot) brought action against defendant St. Paul Fire and Marine Insurance Company (hereafter St. Paul) to recover payment on a labor and materials bond. Camelot was a subcontractor of third-party defendant Priestly Contracting, Inc. (hereafter Priestly). Priestly was named as principal on the bond. Defendant St. Paul moved for accelerated judgment on the basis of a one-year period of limitations contained in the bond contract. Plaintiff Camelot brought a motion for summary judgment under GCR 1963, 117.2(3). Camelot’s motion was granted; St. Paul’s motion was denied. St. Paul appealed to the Court of Appeals. The Court reversed on grounds that the one-year limitations period did apply so as to preclude Camelot’s third-party claim under the bond. 89 Mich App 219; 280 NW2d 491 (1979). We granted leave to appeal. 406 Mich 1009 (1979). We must resolve two questions presented by the parties: (1) whether the bond contract negotiated by the principal, Priestly, and surety, St. Paul, to insure claims against labor and material for the benefit of a third party can subject plaintiff Camelot to a limitation period which is shorter than that created by the Legislature; and (2) whether the form of bond used in this state in this case and in other states throughout the United States which makes reference to statutes of limitations within the particular state where it is used is ambiguous. We hold that neither public policy nor existing authority prohibit private contracting parties from including in a labor and materials payment bond a provision which reasonably limits claimants to a period within which to bring suit that is shorter than the applicable state statute of limitations. We further find that the form of contract used in this case is clear on its face. The contractual exception clause to the one-year limitation provision is relevant only where state statutes prohibit shorter than statutory limits. Thus, this clause does not apply to preclude the one-year provision in this case. The Court of Appeals is therefore affirmed. I On April 8, 1973, defendant Priestly, general plumbing contractor for a private apartment construction project, contracted with defendant St. Paul to obtain a required labor and materials payment bond. The bond provided that St. Paul, as surety, would pay claims made by subcontractors of Priestly, as principal, where the subcontractor had not been paid in full within 90 days of the completion of the subcontractor’s work. The bond was primarily intended to protect the owner of the project, Village Homes, Inc., against mechanics’ lien claims which might accrue over the course of building construction. Priestly entered into a subcontract with Camelot for certain excavation work. The claims intended to be secured were those of subcontractors such as plaintiff Camelot. As subcontractor, Camelot completed the excavation work pursuant to its contract with Priestly. The construction proceeded until April, . 1974, when defendant Priestly abandoned the project. Priestly gave no notice to Camelot that it was leaving the project. At that time, the balance due for the work Camelot had provided was $18,848. Camelot brought suit against Priestly and recovered a default judgment for the amount owing. Then, on August 26, 1976, plaintiff separately sued defendant St. Paul on the bond. St. Paul interposed the defense that the contract barred Camelot’s suit on the basis of the one-year limitation clause contained in the bond contract. The learned trial judge held that the qualifying language in regard to prohibition of private limitation periods by the state limitations statute rendered the contract provision ambiguous and therefore rejected the asserted defense against plaintiff’s claim. On appeal, the Court of Appeals reversed. It found no ambiguity in that the qualifying provision proscribed a shorter limitation than the statutory period only where prohibited by law. The Court of Appeals determined that Michigan’s general statutory limitation provision does not prohibit shorter contractual limitations on suits pertaining to private construction bonds. Consequently, the limitation provision was a valid defense to plaintiff’s suit. II Absent any statute to the contrary, the general rule followed by most courts has been to uphold provisions in private contracts limiting the time to bring suit where the limitation is reasonable, even though the period specified is less than the applicable statute of limitations. The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588, 592; 242 NW2d 396 (1976). See also Barza v Metropolitan Life Ins Co, 281 Mich 532, 538; 275 NW 238 (1937); Turner v Fidelity & Casualty Co of New York, 112 Mich 425, 427; 70 NW 898 (1897). This rule has been held to apply in contracts bonding the performance of building or construe tion projects. See Burlew v Fidelity & Casualty Co of New York, 64 F2d 976, 977 (CA 6, 1933), cert den 290 US 686; 54 S Ct 122; 78 L Ed 591 (1933); Adams v Standard Accident Ins Co, 124 Cal App 393; 12 P2d 464 (1932); Cook v Heinbaugh, 202 Iowa 1002, 1003-1004; 210 NW 129 (1926); Lesher v United States Fidelity & Guaranty Co, 239 Ill 502, 511; 88 NE 208 (1909); McGarry v Seiz, 129 Ga 296, 299; 58 SE 856 (1907); Ausplund v Aetna Indemnity Co, 47 Or 10, 22; 81 P 577 (1905), reh den 47 Or 23; 82 P 12 (1905). See also Anno: Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 ALR3d 1197; Anno: Validity of contractual limitation of time for bringing action, 121 ALR 758. The boundaries of what is reasonable under the general rule require that the claimant have sufficient opportunity to investigate and file an action, that the time not be so short as to work a practical abrogation of the right of action, and that the action not be barred before the loss or damage can be ascertained. See Page County v Fidelity & Deposit Co of Maryland, 205 Iowa 798; 216 NW 957 (1927); Cook v Northern Pacific R Co, 32 ND 340; 155 NW 867 (1915); Sheard v United States Fidelity & Guaranty Co, 58 Wash 29; 107 P 1024 (1910), reh den 58 Wash 37; 109 P 276 (1910). In the instant case, the bond secured claims for labor and materials brought by subcontractors in plaintiff Camelot’s position. However, the primary object of the bond contract was to protect the owner, Village Homes, Inc., against such claims: "The purpose and only purpose of a labor and materials payment bond is to protect the owner against the claims of those who furnish' labor and materials to the contractor because, if he fails to pay these bills, mechanics liens can be filed against the owner and pay ment enforced even though the owner had no direct dealing with the labor and materialmen.” Standard Accident Ins Co of Detroit v Rose, 314 Ky 233, 238; 234 SW2d 728 (1950). Camelot was not a party to the payment bond. Rather, this contract was negotiated between the principal, general contractor Priestly, and the surety, St. Paul. Upon completing the excavation work in accordance with its labor and materials contract with Priestly, and not being fully paid, Camelot became a third-party creditor beneficiary under the bond. See 1 Restatement Contracts, §§ 133, 139, pp 151-152, 165. The parties agreed: "No suit or action shall be commenced hereunder by any claimant: "After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” Normally, where no shorter contractual period of limitation exists, the Michigan statute of limitations specifies a six-year period for bringing suits on contract. MCL 600.5807(8), 600.5813; MSA 27A.5807(8), 27A.5813. Plaintiff Camelot asserts that it should not be restricted by a contractual limitation as it was not a party nor did it have actual knowledge of its contents. Camelot urges that the general statute of limitations should apply to its right of action. No authority exists in Michigan which speaks directly to the question whether legal principles prohibit the enforcement against plaintiff subcon tractor of a one-year limitations provision in a labor and materials payment bond negotiated between a general contractor and surety for the primary benefit of third party owner. However, other jurisdictions have addressed this specific question and we find their views persuasive. The rule adopted by most of these jurisdictions allows the contractual limitations provision to control any third-party subcontractor’s action, even though the subcontractor was not a party to the bond and was not aware of its contents until after the limitation period had run. In California, the Court of Appeals reached this conclusion in relation to a bond provision identical to the one considered in the instant case. Sanders v American Casualty Co of Reading, Pennsylvania, 269 Cal App 2d 306; 74 Cal Rptr 634 (1969). In Sanders, a materials supplier sued on a subcontractor’s bond to recover the amount due for materials the subcontractor had furnished the general contractor. It was stipulated by the parties that the subcontractor ceased work on the project involved more than one year prior to plaintiff Sanders’ commencement of suit. It was also undisputed that plaintiff first learned of the bond’s existence only shortly before action was brought. The question presented to the Court was "whether the one-year limitation contained in a subcontract labor and material payment bond issued on behalf of a subcontractor in favor of a prime contractor bars a claim by a materialman who was not a party to the contract and was not aware of its existence or contents until after the one-year period expired”. Id., 308. Except for the relative position of the parties, the case is thus the same as the instant case. In resolving the question presented, the Court in Sanders found no controlling significance in the fact that plaintiff had not been a direct party to the contract. The Court found the provision within the boundaries of what was considered a reasonable period of limitation admittedly shorter than the statutory period. Language in the contract which specified that "any claimant” would be barred was found sufficient to apply to plaintiff Sanders. The Court went on to characterize Sanders as a third-party beneficiary and found his rights coterminous with those of the principal: " 'There can be no donee beneficiary or creditor beneficiary unless a contract has been formed between a promisor and promisee; and if a contract is conditional, voidable, or unenforceable at the time of its formation, * * * the right of a donee beneficiary or creditor beneficiary under the contract is subject to the same limitation.’ (Restatement, Contracts, § 140, pp 165-166).” Id., 309. Any rights Sanders had under the contract were thus found to be limited by the conditions of the contract itself. See also Bogart v George K Porter Co, 193 Cal 197; 223 P 959 (1924). Plaintiffs unawareness of the contract could not be interposed to circumvent the provision where a reasonable time was provided under the contract to investigate the kinds of claims which would normally arise in such circumstances. We find no credible grounds upon which to distinguish the instant case from Sanders. The relative contractual relationship of the parties was the same; the claim of recovery was the same; the limitation provision was identical and the existing principle of allowing reasonable periods of limitation was present. See Rechtsteiner v National Surety Co of New York, 44 Cal App 774; 187 P 34 (1919). See also The Tom Thomas Organization, Inc v Reliance Ins Co, supra, 592. In Massachusetts, we find another essentially identical decision. General Electric Co v Lexington Contracting Corp, 363 Mass 122; 292 NE2d 874 (1973). In this case, plaintiff sued on a surety bond executed by defendant New Amsterdam Casualty Co. Lexington was principal on the bond and default judgment had been entered as to its liability on the underlying materials claim. The limitation provision in the bond contract was virtually identical to the one involved in the instant case: "No suit or action shall be commenced hereunder by any claimant * * * [a]fter the expiration of one (1) year following the date on which principal ceased work on * * * [the] contract * * Id., 123. It was stipulated by the parties that work on the project for which the bond was executed ceased more than one year prior to suit. The Massachusetts Supreme Court found the provision enforceable against General Electric. Plaintiffs argument that a longer statutory period prevailed in the face of the private contractual limitation was rejected. The Court held that the private contractual provision applied rather than any state statutory limitation. The one-year limitation controlled. Little appears to distinguish that case from the present action. The parties were in a similar contractual posture; the basis of recovery on the contract was the same; the limitation provision was identical and the underlying authority allowing reasonable contractual limitation of action was the same. Plaintiff Camelot contends that in any event public policy should bar contractual limitations by private parties which are shorter than the six-year statutory period of limitations. Generally, the weight of authority in Michigan and elsewhere is against this position. See The Tom Thomas Organization, Inc v Reliance Ins Co, supra, 592; Goosen v Indemnity Ins Co of North America, 234 F2d 463 (CA 6, 1956); Comm’r of Ins v Central West Casu alty Co, 301 Mich 427; 3 NW2d 830 (1942); Ladies of the Modern Maccabees v Illinois Surety Co, 196 Mich 27; 163 NW 7 (1917); Forest Twp v American Bonding Co of Baltimore, 187 Mich 657; 154 NW 26 (1915). See also Cook v Heinbaugh, supra, 1003-1004; Lesher v United States Fidelity & Guaranty Co, supra, 511; McGarry v Seiz, supra, 299. More specific recent decisions have issued in other jurisdictions which serve to further undermine plaintiffs public policy argument. In Georgia, for instance, any argument that public policy prohibits such reasonable contractual limitations as contained in the instant case has been„soundly rejected. Sam Finley, Inc v Interstate Fire Ins Co, 135 Ga App 14; 217 SE2d 358 (1975). In Finley, plaintiff subcontractor sued a contractor seeking recovery of amounts due on its contract. Defendant surety was made a party to the action under the labor and materials bond executed on behalf of the principal. The bond contract contained a limitation that "no suit or action shall be commenced thereunder by any claimant after the expiration of one year following the date on which the principal ceased work on such contract”. Id., 15. In deciding against plaintiff, the Court was explicit that public policy simply did not prohibit such a limitation provision in a private labor and materials payment bond: "Where a labor and material payment bond is given to the owner in which the general contractor is principal, and an insurance company is surety, which bond provides that no suit or action shall be commenced thereunder by any claimant after the expiration of one year following the date on which the principal ceased work on such contract, such limitation upon the bringing of an action by a beneficiary of the contract is not void on the grounds of public policy.” Id., 15. Consistent with this holding, see Walton v American Mutual Fire Ins Co of Charleston, South Carolina, 109 Ga App 348, 349; 136 SE2d 168 (1964); Aiken v Northwestern Mutual Ins Co, 106 Ga App 220; 126 SE2d 630 (1962); General Ins Co of America v Lee Chocolate Co, 97 Ga App 588; 103 SE2d 632 (1958). We find no valid reason not to adopt the position taken in Finley. The contract in the present case was a private contract. No statutory mandate exists that bonds be provided in private subcontracting situations such as this one to protect labor and materials claims. In fact, there is a remedy provided by statute for persons in plaintiffs position which plaintiff failed to invoke. We refer to the provision for obtaining a mechanics’ lien. MCL 570.5; MSA 26.285. Such remedy was open to plaintiff and was not barred by the limitation provision in the bond. Apparently, however, plaintiff Camelot may not have complied with the notification provision of the mechanics’ lien statute and so lost the primary possible avenue of recovery against defendant Priestly. It might be further noted at this point that the mechanics’ lien statute contains a limitation on commencing actions to enforce a lien of one year from recordation, which is similar to the contract provision of the private bond. MCL 570.9; MSA 26.289. Beyond this possibility, we recognize that plain tiff is a third-party creditor beneficiary of the bond executed by the principal, contractor Priestly, and the surety, St. Paul, for the benefit of the owner, Village Homes. Sanders v American Casualty Co of Reading, Pennsylvania, supra, 310; Finley v Interstate Fire Ins Co, supra, 15; Rumsey Electric Co v University of Delaware, 334 A2d 226, 229 (Del Super Ct, 1975), aff'd 358 A2d 712 (Del, 1976). See 1 Restatement Contracts, §§ 133, 139, pp 151-152, 165. However, we are also of the opinion that plaintiff’s status as a third-party beneficiary was subject to the stated conditions of the contract, including the provision that limited the time to bring suit to one year from the date the principal ceased work on the project. See 1 Restatement Contracts, § 140, pp 165-166; 4 Corbin on Contracts, §820, p 278. See also Votaw Precision Tool Co, Inc v Air Canada, 60 Cal App 3d 52, 56; 131 Cal Rptr 335 (1976); Rumsey Electric Co v University of Delaware, supra, 334 A2d 226, 230. We find no violation of public policy or basic unfairness in allowing the enforcement of this private contractual period of limitation, even though shorter than the statutory period normally applicable. The period provided was reasonable. Neither do we find a violation of public policy in the fact that the plaintiff failed to discover the contract prior to its limitation. Plaintiff had a year in which to investigate possible bases of recovery. It failed to initiate any action during the period when recovery for its work was possible. We might feel different had the limitation provision been constructed in such a way that plaintiff could not have reasonably discovered its loss prior to the point at which the limitation period ran. Cook v Northern Pacific R Co, supra, 350-351; Sheard v United States Fidelity & Guaranty Co, supra, 35. However, in this case, the contract provided one year from the time at which the contractor Priestly ceased work on the project. Certainly, with a reasonable amount of diligence, plaintiff could have discovered the existence of the bond contract and the fact that contractor Priestly had abandoned the work. A cursory investigation of the facts surrounding the progress of the project or lack thereof and some minimal inquiry of legal remedies could have reasonably protected plaintiff’s mechanics’ lien or contractual third-party rights. Public policy will not intervene to aid plaintiff in this case. We find the contractual provision enforceable. Ill Plaintiff Camelot argues that the provision in the bond is ambiguous and thus should be construed against St. Paul. We find no ambiguity. The provision bars any claimant from commencing action: "After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” (Emphasis added.) The point of controversy involves the italicized portion of the quoted provision. It is asserted that Michigan’s six-year statutory limitation on contract actions fits within the prohibition language specified in the contract clause. MCL 600.5807(8), 600.5813; MSA 27A.5807(8), 27A.5813. Those two provisions state: , "No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. "(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.” "All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.” No ground exists to alter the one-year limitation on actions contained in the bond contract unless a state statutory provision prohibits the shorter period. The term prohibit has been defined by decisions of this Court: “Strictly, the word 'prohibit’ means to forbid or interdict by authority, hinder, debar, prevent.” Timm v Common Council of the Village of Caledonia Station, 149 Mich 323, 324; 112 NW 942 (1907). We fail to see any language contained in either statutory provision for limitation of contract actions which would prohibit a shorter period as to private labor or materials payment bond contracts. Beyond the possible application of the bond contract language, we can perceive no basis for finding the provision ambiguous. No claims of ambiguity have been raised elsewhere in contracts containing identical terms. See Sanders v American Casualty Co of Reading, Pennsylvania, supra, 309, fn 2; General Electric Co v Lexington Contracting Corp, supra, 123; Finley v Interstate Fire Ins Co, supra, 15. We have no general policy or statutory enactment in this state which would prohibit private parties from contracting for shorter limitation periods than those specified by general statutes. Some states do and so private contracts for shorter periods are precluded. See, eg., Hiram Scott College v Ins Co of North America, 187 Neb 290; 188 NW2d 688 (1971). However, where no statute expressly prohibiting a shorter contractual period exists, decisions in other jurisdictions have found no construction problem in upholding these provisions. Rumsey Electric Co v University of Delaware, supra. In Rumsey, plaintiff electrical equipment supplier sued to recover the cost of materials provided a then-bankrupt subcontractor on the basis of a performance bond executed among the various defendants to a university building project. One clause of the bond contract proscribed any commencement of action after one year after the project’s completion. The Delaware Supreme Court resolved any question of ambiguity by stating that absent any "express statutory provision to the contrary”, the shorter period prevailed. Id., 358 A2d 714. Express prohibitions exist in some states. However, with the absence of such a policy or statute in Michigan, we find no application of the language in the bond contract which would amend the shorter period to the prevailing law and thus no ambiguity in the contract clause. We thus reject plaintiff’s assertion and affirm the enforcement of the bond contract bar to suit. IV The bond contract upon which plaintiff relies in its suit against defendant St. Paul does not unreasonably limit the time in which plaintiff subcontractor, as third-party beneficiary, may commence legal action. As a third-party beneficiary, plaintiff is limited to reasonable conditions specified by the contract where those conditions reasonably require compliance. We find no violation of public policy and thus affirm enforcement of the limitation provision on the facts existing in this case. We further discern no ambiguity in the language of this provision and therefore perceive no basis to construe its limitation provision against defendant surety. The judgment of the Court of Appeals is affirmed. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J. Provision for accelerated judgment is found in GCR 1963, 116.1: "In a party’s first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds: "(5) the claim is barred because of release, payment, prior judgment, statute of limitations, statute of frauds, infancy, or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.” The provision reads as follows: "The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds: "(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.” The limitation provision in Sanders reads as follows: "(3) No suit or action shall be commenced hereunder by any claimant, "(a) After the expiration of one (1) year following the date on which principal ceased work on said subcontract it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” Sanders v American Casualty Co of Reading, Pennsylvania, 269 Cal App 2d 306, 309 fn 2; 74 Cal Rptr 634 (1969). One minor difference between the cases was that plaintiff Sanders had lodged various suits against several involved parties prior to the case at bar, one of which appears to have been brought in Federal court within one year of the date the subcontractor ceased work on the project. However, this fact would speak more strongly to granting plaintiff relief in Sanders than in the instant case simply because Sanders had demonstrated some degree of diligence in investigating and attempting to pursue his legal remedies against the defendants. See id., 307-308. Plaintiff Sanders and plaintiff in the instant case rely upon the California decision in Olds v General Accident Fire & Life Assurance Corp, 67 Cal App 2d 812; 155 P2d 676 (1945). In Olds, defendant insurer issued an automobile liability policy to Helmut Hardt covering an owned vehicle. Hardt subsequently injured third party William Kingston while driving the automobile. Kingston sued Hardt and recovered a substantial judgment. Some time afterward, Kingston died and Hardt fled the country. Plaintiff Olds, as represenative of decedent’s estate, then brought the present action. However, the action was commenced over one year after the right accrued, and defendant insurer cited as a bar to suit a provision in the policy limiting to one year the right of action. The District Court of Appeal rejected this argument and affirmed a judgment for plaintiff obtained below. The Court found that the limitation provision could not foreclose plaintiff or the decedent because neither had been parties to the insurance contract. The Court in Sanders distinguished this holding on the basis that the language in the Olds contract was found crucial to the conclusion reached in that the language clearly limited only actions by the insured, not actions by third parties. Language in both the Sanders contract and that involved in the instant case obviously differ and refer to limitation of actions by any claimant. In addition, the Olds Court found an express conflict between the private limitations period and the statutory provision. We face no such conflict in the present case. See text, infra. We also find several other grounds to distinguish the Olds case. The contract there was a personal injury liability insurance policy. Strong interests exist to protect parties in actions to recover such personal injury claims, and the equitable merits of allowing recovery by innocent third-party victims there speak persuasively against permitting possible technical forfeitures. We would also highlight the status and relationship of the parties in the instant matter. We deal here not with an innocent third-party automobile accident victim, but with a building subcontractor involved in a commercial venture. Furthermore, we are involved with a commercial tradesman whom the state has provided with a primary statutory remedy to insure recovery for lost labor and materials. See MCL 570.5; MSA 26.285. In Tom Thomas, the Court dealt with a distinct set of facts and legal problem. Plaintiff Thomas sued to recover damages resulting from the loss of films and tapes insured by defendant Reliance. The policy issued by Reliance contained a provision requiring commencement of action within one year of the discovery of the loss. In fact, loss occurred on December 14, 1971. Plaintiff brought suit on March 16, 1973. However, plaintiff reported the loss to Reliance on January 20, 1972, and filed proof of loss on March 7, 1972. Defendant eventually denied liability on June 22, 1972. The Court held that the running of the one-year limitation period was tolled from the date plaintiff gave notice of loss until liability was formally denied by Reliance. Under this ruling, plaintiffs suit was timely commenced. Thomas did not involve a third-party beneficiary claim. The party claiming loss was the party who had contracted directly with the insurer. The claim asserted was therefore the primary and exclusive remedy for the loss suffered, a remedy which plaintiff had paid Reliance to insure. In addition, the error asserted in Thomas was not that a one-year limitation period was unreasonable but that the time determined to commence the one-year period was improperly ascertained. Because of the peculiar delays inherent in the claims procedure and the actions of defendant insurer, we found an estoppel which served to toll the running of the limitation period during the time the insurer took to consider plaintiffs claim of loss. In the instant case, no such question appears in brief or argument and is inapplicable in a situation where defendant St. Paul had no direct dealings with Camelot prior to suit and where suit was not commenced until nearly a year and one half after contractor Priestly ceased work on the construction project. We thus find the specific holding in Thomas inapposite to the case at bar. As in Sanders, supra, plaintiff General Electric had commenced suit against defendant New Amsterdam in Federal court well within the year following the date work on the apartment ceased. Again, we find that this fact militates in favor of recovery in the subsequent state action there due to the continued diligence of plaintiff in seeking and pursuing all avenues of possible legal recovery. We note at this point that contractors involved in most governmental construction projects are required to obtain a performance bond. See MCL 129.201 et seq.; MSA 5.2321(1) et seq. Within the context of such public bonds, the statute provides a one-year limitation period for commencement of actions running from the date on which final payment was made to the principal contractor. MCL 129.209; MSA 5.2321(9). This limitation has been recognized by Michigan courts. Affiliated Bank of Middleton v American Ins Co, 77 Mich App 376; 258 NW2d 232 (1977). Authority exists to the effect that defendant insurer may be estopped from asserting, or be held to have waived, the time bar as a defense where the plaintiff has been allowed to rely upon some longer time period. See Burlew v Fidelity & Casualty Co of New York, 64 F2d 976, 977-978 (CA 6, 1933), cert den 290 US 686; 54 S Ct 122; 78 L Ed 591 (1933); Goosen v Indemnity Ins Co of North America, 234 F2d 463, 465 (CA 6, 1956); Reynolds v Detroit Fidelity & Surety Co, 19 F2d 110, 112-113 (CA 6, 1927). Under the facts of the instant case, however, nothing appears in the record to indicate any attempt on defendant insurer’s part to foster any kind of material reliance by plaintiff Camelot on a period of limitations different than that specified in the bond contract. See also Wesselman v Travelers Indemnity Co, 345 A2d 423, 424 (Del, 1975); Ottendorfer v Aetna Ins Co, 231 A2d 263 (Del, 1967); Murray v Lititz Mutual Ins Co, 44 Del (5 Terry) 447; 61 A2d 409 (1948).	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Blair Moody, Jr., J. Leonard Winford was initially charged with indecent exposure in violation of MCL 750.335a; MSA 28.567G). In the same complaint, defendant was also charged with being a sexually delinquent person at the time of the offense. MCL 767.61a; MSA 28.1001(1).1 Before trial the sexual delinquency charge was deleted on the assumption that the charge might properly be brought after trial on the principal offense of indecent exposure. The examining magistrate bound the defendant over on indecent exposure but deferred to the prosecutor the decision whether to return an information or take further action relative to the question of sexual delinquency. On June 12, 1973, trial was held on the principal offense and defendant was convicted by a jury On June 25, 1973, the prosecutor filed a supplemental information again charging defendant with being a sexually delinquent person. Defendant was tried by another jury separately empaneled to hear the sexual delinquency charge. 1234 The jury found defendant guilty. On the basis of this conviction, the court sentenced defendant to serve not less than one day nor more than life imprisonment. Defendant appealed to the Court of Appeals, challenging the prosecutor’s right to bring a charge of sexual delinquency subsequent to trial on the principal offense of indecent exposure. The Court of Appeals ruled that any charge of sexual delinquency must be brought in the original information charging indecent exposure. Consequently, because defendant was actually charged only after trial on the principal offense, the sexual delinquency proceeding against him was improper. The Court of Appeals therefore reversed defendant’s sexual delinquency conviction and dismissed that charge. 59 Mich App 404; 229 NW2d 474 (1975). We granted leave to appeal. 395 Mich 824 (1976). The question on appeal is whether in a case where defendant is convicted of the principal offense of indecent exposure under MCL 750.335a; MSA 28.567(1), the prosecutor possesses authority after trial to file a supplemental information charging sexual delinquency. We find no such authority and affirm the holding of the Court of Appeals. The charge of sexual delinquency must be dismissed. However, we do not fully agree with the reasoning employed to reach this result and so write to clarify our conclusion. I Defendant was convicted of indecent exposure. The statute defining this offense also provides the basis for charging defendant with being a sexually delinquent person at the time the offense was committed. MCL 750.335a; MSA 28.567(1) provides: "Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding said offense shall be triable only in a court of record.” The history of sexual delinquency legislation clearly indicates the Legislature’s intent to create a comprehensive, unified statutory scheme. This legislation was enacted to provide an alternate sentence for certain specific sexual offenses where evidence appeared to justify a more flexible form of incarceration. See People v Helzer, post, 404 Mich 410; 273 NW2d 44 (1978). To this end, the Legislature introduced language into several previously existing categories of sexual offenses to allow prosecution for sexual delinquency. 78 Additionally, sexual delinquency was included in the then-existing mental health code and the Department of Corrections Act. To help implement these statutory changes, the Legislature also separately enacted a definitional provision and a procedural provision as general guidelines in sexual delinquency prosecutions. The latter section which outlines the procedure to be used in such prosecutions is MCL 767.61a; MSA 28.1001(1): "In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person.” (Emphasis added.) The prosecutor relies upon the underscored language of the statute for authority to file a separate supplemental information charging sexual delinquency after conviction on the principal offense. The Court of Appeals rejected this analysis by concluding that this provision has no application to the procedure governing how the defendant is to be charged as a sexually delinquent person, and that MCL 750.335a; MSA 28.567(1), the section which defines the crime, is complete and self-sustaining. That court stated: "[t]he prosecutor can charge a person with indecent exposure or he can charge additionally that at the time of the offense the person was a sexually delinquent person. He cannot do both.” We disagree with both analyses. We find the procedure outlined in MCL 767.61a; MSA 28.1001(1) a necessary part of the integrated statutory structure the Legislature enacted to resolve the problem of sexually delinquent persons. This provision clearly complements and affects any such prosecution. Accordingly, we hold that this provision does not permit the prosecutor to file a sexual delinquency charge after trial to supplement the principal charge. However, it is within the prosecutor’s discretion before trial to simultaneously charge the principal offense and the sexual delinquency claim or to proceed solely with the principal offense. A reading of this procedural statute indicates that the indictment "shall” charge the principal sexual offense and "may also” charge sexual delinquency. In other words, the original charging instrument should "also” include any sexual delin quency claim that may be charged. We are persuaded that use of the word "may” in the statute simply refers to the discretion of the prosecutor to bring or not to bring the added charge. Consequently, no authority exists in this statutory provision, or in any other, allowing the prosecutor to file an information subsequent to trial on the principal offense. However, given the possible initial uncertainty about lodging so serious a charge against a defendant, we will allow amendment of the indictment or information prior to trial. Nevertheless, after trial on the principal offense begins, the prosecutor is held to waive any right to charge defendant with sexual delinquency. See People v Helzer, supra. II The procedure followed in this case violated the dictates of MCL 767.61a; MSA 28.1001(1). The supplemental information exposed the defendant unduly to the uncertainty and prejudice late charges can produce. The Court of Appeals is therefore affirmed in its reversal of defendant’s conviction of sexual delinquency and its dismissal of that charge. We need not consider defendant’s other claims of error. Affirmed. Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J. MCL 750.335a; MSA 28.567(1) reads as follows: "Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding said offense shall be triable only in a court of record.” MCL 767.61a; MSA 28.1001(1) specifies the following: "In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in section 35 of chapter 8 of this act, and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense.” Defendant does not question the propriety of his indecent expo sure conviction. Therefore, this appeal is limited solely to the validity of defendant’s sexual delinquency prosecution. Evidence of the following eight prior criminal convictions was introduced to support the charge of sexual delinquency: 1. Detroit, September 27, 1950, window peeping. 2. Los Angeles, April 4,1952, rape. 3. Los Angeles, April 4,1952, burglary. 4. Battle Creek, November 13,1958, window peeping. 5. Battle Creek, December 15,1961, assault with intent to rape. 6. Battle Creek, May 10,1969, disorderly by obscene conduct. 7. Battle Creek, July 20,1970, larceny. 8. Battle Creek, June 12, 1973, indecent exposure. On November 9, 1973, defendant was sentenced to one year in the Calhoun County jail as a result of the conviction of indecent exposure. Two days later, defendant was sentenced to an indeterminate prison term for the sexual delinquency conviction. This dual sentence was improper. We have characterized the indeterminate penalty for a sexual delinquency conviction as an alternate form of sentencing. See People v Helzer, post, 404 Mich 410; 273 NW2d 44 (1978). Consequently, defendant can be sentenced only once. If sexual delinquency is an included part of the prosecution on the principal offense, then no sentence should be pronounced until that matter is completely resolved. See the indecent liberties statute, MCL 750.336; MSA 28.568, the rape statute, MCL 750.520; MSA 28.788, the assault with intent to commit rape statute, MCL 750.85; MSA 28.280, the incest statute, MCL 750.333; MSA 28.565, the gross indecency statutes, MCL 750.338, 750.338a, 750.338b; MSA 28.570, 28.570(1), 28.570(2), and the sodomy statute, MCL 750.158; MSA 28.355. MCL 330.54; MSA 14.844. MCL 791.33a et seq.; MSA 28.2173(1) et seq. See MCL 750.10a; MSA 28.200(1), which reads: "The term 'sexually delinquent person’ when used in this act shall mean any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.” We have determined that a charge of sexual delinquency is totally dependent for its prosecution upon conviction of the principal offense. We have also held that the penalty for conviction of sexual delinquency represents an alternate form of sentencing. See People v Helzer, supra. Consequently, though we require the prosecutor to include the sexual delinquency charge either in the original charging document or by amendment of the indictment or information before trial begins, the magistrate at the preliminary examination need only find probable cause to bind defendant over on the principal offense. The magistrate need not find probable cause as to the sentencing provision charging sexual delinquency. Where the prosecutor decides to charge defendant in the original indictment or information with sexual delinquency, he should bring the misdemeanor prosecution on the principal offense of indecent exposure in circuit court under the statute providing concurrent jurisdiction with district court. See MCL 767.1; MSA 28.941. If the prosecutor initially charges only indecent exposure and before trial decides to amend and charge sexual delinquency as well, then the entire proceedings would be subject to transfer to circuit court at that time. Defendant argues that an analogy exists between the procedure specified to charge sexual delinquency and the procedure used to charge in habitual offender proceedings. We reject the argument for reasons stated elsewhere. See People v Helzer, supra.	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Per Curiam. In Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118; 301 NW2d 275 (1981), we upheld the enforceability against a subcontractor of a contractual one-year period of limitation on suit in a labor and materials payment bond. In the instant case, we are asked to decide whether a provision in such a bond which prohibits a subcontractor from suing for 90 days after having last furnished labor or materials tolls the limitation period. We hold that it does not. I In this case, Territorial Construction, Inc., was the general contractor on a development project in Independence Township, Oakland County, owned by John C. Helveston. To protect Helveston against mechanics’ lien claims, Territorial obtained a labor and materials payment bond from Sentry Insurance. The bond named Territorial as principal and Sentry as surety, and contained the following pertinent provisions: "2. The above-named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work for labor was done or performed, or materials were furnished by such claimant, may sue on this bond for use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. "3. No suit or action shall be commenced hereunder by any claimant: "(b) After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” W. R. Armand, doing business as Armand Drilling & Dewatering Co., was employed by Territorial to perform dewatering services on the project. On November 5, 1974, both Armand and Territorial ceased work. On November 18, 1975, Armand filed the instant suit, claiming nonpayment for its services and seeking recovery on the labor and materials payment bond. Sentry’s motion for accelerated judgment on the basis of the expiration of the contractual one-year limitation period was granted by the trial court. The Court of Appeals reversed, holding that the provision in the bond which prohibited the claimant from suing for a 90-day period after having last furnished labor or materials tolled the limitation period. 90 Mich App 491; 282 NW2d 365 (1979). Sentry has applied to this Court for leave to appeal. II In reversing, the Court of Appeals relied on our decision in The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976). In that case, we construed facially similar provisions in an inland marine insurance policy. A limitation provision in the policy gave the insured 12 months in which to bring suit. Other provisions gave the insured 90 days in which to file a proof of loss, and gave the insurer an indefinite period of time in which to accept the proof of loss and pay the claim. We found that a conflict existed between the limitation provision and the proof-of-loss and payment-of-claims provisions because the limitation provision purportedly was intended to give the insured a full 12 months in which to bring suit and the proof-of-loss and payment-of-claims provisions had the effect of substantially shortening that period. To resolve this incongruity, we adopted the reconciliation approach of Peloso v Hartford Fire Ins Co, 56 NJ 514; 267 A2d 498 (1970), and held that the limitation period should be tolled "from the time the insured gives notice until the insurer formally denies liability”. 396 Mich 597. More recently, in In re Certified Question, Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22; 319 NW2d 320 (1982), we applied the Thomas-Peloso reconciliation analysis to substantially identical provisions in the statutory fire insurance policy. Although statutory rather than contractual, we concluded that the intent of the limitation provisión was the same: to give the insured a full 12 months in which to institute suit. Accordingly, we held that the same tolling occurred from the time the insured gives notice until the insurer finally denies liability. The Court of Appeals in this case found the provisions in the bond to be analogous to those in Thomas and concluded that they should be similarly construed. We hold, however, that this is not another conflicting provisions case and that the applicable analysis is found in our decision in Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, supra. In Camelot, we upheld a one-year period of limitation on suit in a labor and materials bond as applied to a subcontractor. We held that because the subcontractor was only an incidental third-party beneficiary to the private bond contract, the limitation period should be held valid and enforce able as to the subcontractor so long as it provided a reasonable amount of time in which the subcontractor could have protected its contractual rights. Despite the subcontractor’s claim in that case that it was unaware of the bond contract until after the limitation period had expired, we held that the one-year period was a reasonable amount of time in which the subcontractor could have discovered and protected its rights under the bond. Although this case might at first glance appear to be another conflicting provisions case like Thomas and Lumbermens, it is not. In both of those cases, we found that the limitation provision was intended to give the insured a full year in which to file suit. We found this intent in Thomas because the case involved a two-party insurance contract written by the insurer purportedly for the benefit of the insured. In Lumbermens, we found a similar intent in a statutory policy because the principal purpose of the Insurance Code is to protect policyholders. 413 Mich 38. The conflict in both cases arose because the proof-of-loss and payment-of-claims provisions had the effect of substantially shortening the period available to the insured in which to file suit. In the instant case, we discern no intent in the limitation provision of the bond to give the subcontractor a full year in which to file suit. Unlike the insured in Thomas and Lumbermens, the subcontractor is merely an incidental third-party beneficiary of a bond contract written for the benefit of others. The bond is written primarily to protect the owner of the project from mechanics’ lien claims. The subcontractor is included as a beneficiary merely as a means of better protecting the owner. The intent of the limitation period is not to give the claimant 12 months in which to bring suit, but, rather, to limit the surety’s obligation to one year after the principal ceases work. Because the surety’s contract is with the general contractor and not the subcontractor, it should be allowed to limit its liability to a definite period of time relating to the general contractor’s performance on the construction contract. Furthermore, the provision in the instant case that prohibits the subcontractor from filing suit for 90 days is presumably intended to give the principal and owner time in which to pay the claim. It is not a period over which the surety has any control and involves no contact between the claimant and the surety. Thus, it is not like the proof-of-loss and payment-of-claim periods in Thomas and Lumbermens " 'during which an insured’s right to bring suit is postponed * * * for the benefit of the company so that it can pursue its statutory and contractual rights’ ” and thus " 'ought not to be charged against the insured’s time to bring suit’ ”. Lumbermens, 413 Mich 35. Because there is no conflict or incongruity in the provisions of the bond, the reconciliation approach is inapposite. When reduced to its essence, this case presents the same question we addressed in Camelot: whether the contractually shortened limitation period in this case is valid and enforceable. Resolution of that question turns on whether the total amount of time available to the subcontractor was a reasonable amount of time in which to protect the subcontractor’s contractual third-party rights. The period of time available to Armand in this case was nine months. This was ample time during which it could have filed suit and protected its contractual rights. Accordingly, we hold that the contractually shortened limitation period in this case was reasonable and enforceable. In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand the case to the trial court for reinstatement of the accelerated judgment in Sentry’s favor. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. "[N]o action 'shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim * * *. ” 396 Mich 591-592. " '3. Notice of Loss: The Insured shall as soon as practicable report in writing to the Company or its agent every loss, damage or occurrence which may give rise to a claim under this policy and shall also file with the Company or its agent within ninety (90) days from date of discovery of such loss, damage or occurrence, a detailed sworn proof of loss. " '16. Settlement of Loss: All adjusted claims shall be paid or made good to the Insured within sixty (60) days after presentation and acceptance of satisfactory proof of interest and loss at the office of the Company.’ ” 396 Mich 596, fn 8. " 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss’. " '[W]ithin sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss’. " 'The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company’.” 413 Mich 34-35.	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Williams, J. We granted leave to appeal especially to consider "whether the statute of limitations contained in MCL 418.361(2)(g); MSA 17.237(361)(2)(g) is constitutionally infirm on equal protection and due process grounds.” Subdivision (2)(g) reads: "(2) Total and permanent disability, compensation for which is provided in section 351 means: "(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.” (Emphasis added.) We hold that § 361(2)(g) does not violate equal protection or due process. The Legislature could legitimately create a separate category of persons suffering from permanent and total loss of industrial use in subsection (g), from those suffering anatomical or mental losses outlined in the other six categories of total and permanent disability, since that category is medically, factually, and legally distinguishable. Further, the Legislature could reasonably assume that permanent and total loss of industrial use would manifest itself within the statutory period of almost ten years. The decision of the Court of Appeals on this point is reversed. We, however, agree, but for different reasons, with the decision of the Court of Appeals to remand the matter to the Workers’ Compensation Appeal Board to determine in the light of all the pertinent testimony whether the Burke legal standard was met. I. Facts The facts in this case are undisputed. Plaintiff Carlton P. Johnson received 500 weeks of workers’ compensation benefits at a final rate of $45 per week for total incapacity arising from a 1959 injury to the right knee sustained while working for defendant Harnischfeger Corporation. Payments ceased on July 1, 1974. On August 14, 1974, plaintiff filed a petition for hearing with the Bureau of Workers’ Compensation, alleging total and permanent disability resulting from the loss of industrial use of both his legs under MCL 418.361(2)(g); MSA 17.237(361)(2)(g). Following a hearing and receipt of the deposition taken from plaintiff’s orthopedic surgeon, the hearing referee found plaintiff totally and permanently disabled as of September 17, 1974, the date on which plaintiff had visited his physician following the expiration of the limitational period, which was on July 1, 1974. Payments were ordered retroactive to July 2, 1974. This determination was unanimously reversed on January 18, 1977, by the WCAB. The pertinent part of the order read: "[P]laintiff has failed to sustain his burden of proof to show permanent and total disability.” The concurrent WCAB opinion, however, reversed, stating pertinently: "From our review of the record, we make a finding of fact that plaintiff did not sustain his burden of proof of industrial loss of use of both legs prior to the expiration of 500 weeks from the date of his December 1, 1964 injury.” The Court of Appeals, in its opinion of January 4, 1979, affirmed the WCAB. The opinion excerpted a sentence from the WCAB opinion as follows: "Plaintiffs testimony above, taken at face value, does not meet the test of Burke, supra, in establishing permanent and total disability.” Although "plaintiff’s testimony above” referred only to the plaintiff’s own testimony, disregarding that of his physician, Dr. Lyons, who also testified and whose testimony was considered by the WCAB after the above quotation, the Court of Appeals reached its conclusion on the basis of the plaintiff’s testimony alone as follows: "We hold, therefore, that the appeal board did not err in concluding that plaintiff had failed to meet his burden of proof under the Burke test.” In passing, we note that after considering Dr. Lyons’ testimony, the WCAB opinion concluded: "Plaintiff simply has failed to sustain his burden of proof * * * within the period provided by subsection (2)(g).” This negative disposition of the threshold issue precluded the necessity of consideration of the plaintiffs constitutional arguments by the Court of Appeals. This Court vacated the Court of Appeals judgment and remanded to the Court of Appeals, stating, "The Workmen’s Compensation Appeal Board’s finding that plaintiff had not sustained his burden of proof of loss of use of both legs within the period provided by MCL 418.361(2)(g); MSA 17.237(361)(2)(g) requires consideration of the constructional and constitutional issues raised by plaintiff.” (Emphasis in order.) The Court of Appeals, in its February 6, 1980, opinion on remand, concluded that § 361(2)(g) violated both due process and equal protection guarantees. The constructional issue was not addressed. Further, the Court stated that: "We assume that our affirmance of the factual determination of the appeal board [i.e., failure to satisfy Burke] is overruled sub silentio. * * * The Supreme Court must have * * * intended to overrule [our affirmance], else why would it issue its order requiring consideration of the constitutional issue if the disability issue already foreclosed the plaintiff from any possibility of prevailing?” 95 Mich App 384-385. We then granted leave to appeal, requesting the parties to address the constitutionality of the limitational provision in § 361(2)(g). II. Constitutionality of § 361(2)(g) Plaintiff’s principal contention is that § 361(2)(g) violates the constitutional guarantees of equal protection and due process. He asserts (A) that such discrimination against a class of claimants constitutes a denial of equal protection under any standard of review. He also argues (B) that due process is offended by denying the right to make a claim when the claim arises. The Court of Appeals was unpersuaded by defendants’ arguments that avoidance of stale claims is a reasonable basis for justifying the contested provision. Using the minimum rationality standard of review, the panel concluded that the potential for stale claims in other categories of total and permanent disability, with attendant problems of proof, eliminated any justification for the different treatment accorded claimants under § 361(2)(g). The Court of Appeals also held that subsection (g) denied due process largely on the ground that it could deny a worker the right to suit before his cause of action arose. We disagree. For purposes of considering the constitutionality of subsection (2)(g), we will accept the construction implicitly employed by the WCAB in its opinion, namely that a claim may be made after the 30-day period so long as the claimant can prove that permanent and total loss of industrial use [in this case of both legs] existed before the commencement of the 30-day period. Furthermore, we understand that this is the general practice of WCAB. Sevegney v Robbins Flooring Co, 1968 WCABO 366, 373. Besides, neither the defendant nor the plaintiff has contested this interpretation. Certainly, in the absence of such argument, at least for the purposes of considering the constitutionality of subsection (2)(g), this Court may properly pay deference to the WCAB’s construction. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968). We begin our analysis by reviewing certain principles which have become axiomatic. First of all, legislation challenged on a constitutional basis is "clothed in a presumption of constitutionality.” Cruz v Chevrolet Grey Iron Division of General Motors Corp, 398 Mich 117, 127; 247 NW2d 764 (1976). As we noted in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975): "A classification will stand unless it is shown to be 'essentially arbitrary.’ Few statutes have been found so wanting in 'rationality;’ as to fail to satisfy the 'essentially arbitrary’ test.34 "34 From 1941 to 1970, the United States Supreme Court found economic legislation to violate the equal protection clause in only one case, Morey v Doud, 354 US 457; 77 S Ct 1344; 1 L Ed 2d 1485 (1957).” Second, the burden is on the objectors to show that the statute is arbitrary. We noted in McAvoy v H B Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977), which dealt with the constitutionality of the "70% rule” for payment during appeal of workers’ compensation cases, that: "In the case at bar, it becomes immediately apparent that the thrust of the legislation challenged is primarily social and economic. The legislation involved deals with property rights, not fundamental rights. Therefore, the burden is on the appellants to show the classification is arbitrary and does not bear a rational relation to the object of the legislation.” Third, the proper standard to test equal protection or due process challenges to socioeconomic legislation was set forth for both as follows: "[I]n the face of a due process or equal protection challenge, 'where the legislative judgment is drawn in question’, a court’s inquiry 'must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it’. United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938). * * * [W]here the legislative judgment is supported by 'any state of facts either known or which could reasonably be assumed’, although such facts may be 'debatable’, the legislative judgment must be accepted. Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936).” Shavers v Attorney General, 402 Mich 554, 613-614; 267 NW2d 72 (1978). (A) Equal Protection Turning to the argument that the provision denies equal protection, the plaintiff bears a heavy burden. The plaintiff must show that the classification created by subsection (g) and the classifications created by subsections (a) through (f) are so arbitrary that they cannot be supported under any state of facts, either known or which could reasonably be assumed. Furthermore, if the facts are debatable, the legislative judgment must be accepted. Davey v Detroit Automobile Inter-Ins Exchange, 414 Mich 1; 322 NW2d 541 (1982). Plaintiff in the instant case, to prove unconstitutionality, must show either that there is no reasonable relation between the statutory limitation in subsection (g), loss of industrial use, and a legitimate governmental interest, or that the inclusion of the limitation in subsection (g), loss of industrial use, and not one in subsections (a) through (f), specific losses, is arbitrary and capricious. In Red fern v Sparks-Withington Co, 403 Mich 63, 79-80; 268 NW2d 28 (1978), this Court discussed at length the differences between various workers’ disability compensation benefit categories. This Court said: "There are two broad categories of workers’ compensation benefits: scheduled benefits and general disability benefits. Scheduled benefits are awarded for specific medical losses without regard to whether there is a reduction of wage earning capacity; in general they are payable for permanent loss of a specific anatomical member or function, e.g., a foot, hand, sight in one eye. General disability benefits are awarded for a loss of wage earning capacity even if there is no specific medical loss. "Devastating specific losses enumerated in the statute, e.g-, both legs or sight of both eyes, are deemed a 'total and permanent disability’. 'Incurable insanity or imbecility’ is so enumerated. "Sprute [v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971)] and Borg [v Fisher Body Division of General Motors, 1969 WCABO 1246] both make 'unfitness’ for employment a precondition to qualification for total and permanent disability benefits. "With the exception, however, of a distinctive category, 'loss of industrial use’ of limbs, added to the total and permanent disability definition after its original formulation, entitlement to compensation for total and permanent disability does not depend on whether the loss affects wage earning capacity. "Since scheduled benefits for all specific losses, major or relatively minor, are payable without regard to loss of wage earning capacity, except for the distinctive and atypical 'industrial use’ loss, it would not be consonant with the design of the act to regard wage-earning capacity as determinative of entitlement to total and permanent disability benefits for incurable insanity and imbecility alone.” Of particular importance to the instant case is the analysis that subsections (a) through (f), loss or paralysis of an anatomical member plus incurable insanity or imbecility, all differ from subsection (g), loss of industrial use. That difference is described as follows: "All the specific losses affect the quality of life apart from wage-earning capacity.” Redfern, supra, 81. Redfern certainly establishes that the specific-loss subsections differ from the "loss of industrial use” subsection. The question we must decide is whether that difference is reasonably related to the legislative requirement of a 30-day statutory limitation for the "loss of industrial use” subsection and not for the specific-loss subsections. More precisely we must decide whether plaintiff can show that in establishing such a relationship the Legislature acted arbitrarily. The proof or disproof of loss of industrial use is unlike that of specific loss. The latter requires the medical determination as to the loss or paralysis of anatomical members or incurable insanity or imbecility, whereas the former requires a determination whether or not as a result of an injury a worker can continue at his former work, which is something in addition to a normal medical diagnosis. The Legislature in its wisdom decided that the proof, disproof or review of loss of industrial use as of a particular date was susceptible to becoming more difficult or impossible with the passage of time between the date of injury and the focal date but that the proof or disproof of specific loss was not. We cannot regard this as an arbitrary decision. Generally speaking, the totality and permanency of the specific injuries described in § 361(2), subds (a)-(f) are readily apparent at the time of the accident or shortly thereafter. Of course, this is particularly true of loss of limbs. Medical verification of these afflictions is easily obtained. Loss of industrial use, however, may not be so readily apparent. The passage of very significant periods of time makes defense of loss of industrial use claims unfeasible, since it is difficult for employers to reconstruct the circumstances of the accident and its effect on the ability of the worker to do his work. Loss of industrial use requires proof of impaired wage-earning capacity. Such an impairment may arise from multiple sources other than a physical injury, including aging. Without imposition of reasonable time restrictions for such claims, it would be difficult, if not impossible, to determine whether the impairment is due to an employment-related injury. Petitions based on subjective medical conclusions, arrived at years after an injury, may accurately reflect the state of the claimant’s health, but they provide little opportunity for an employer to contest them in good faith. In addition, total and permanent disability claims implicate Michigan’s Second Injury Fund. Placing responsibility on the fund to pay differential benefits in cases which are not susceptible of a defense could compromise the fund and destroy its effectiveness. Avoiding the creation of indefensible claims through the passage of time is a valid and necessary objective for the establishment of a limitational period. Under such circumstances, we find it entirely appropriate that the Legislature provided "30 days less than 500 weeks” as a focal point to review a claim of permanent and total loss of industrial use. There is no violation of equal protection in interpreting § 361(2)(g) in . such a manner. (B) As we observed in Shavers v Attorney General, 402 Mich 554, 612-613; 267 NW2d 72 (1978), and repeated in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 541; 273 NW2d 829 (1979), the test for equal protection and due process is essentially the same when reviewing socioeconomic legislation. In both cases, we said: "The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. See Michigan Can ners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976). "The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same. As the United States Supreme Court declared in United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973): " 'Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.’ (Citations omitted.)” We have already shown that there is a reasonable relation between providing a statute of limitations in subsection (g) and none in subsections (a) through (f). Also it was indicated thát there is a reasonable governmental interest in establishing a statutory limitation for subsection (g), i.e., to avoid indefensible claims and to protect the stability of the Second Injury Fund. We believe that a goal of protecting the Second Injury Fund’s vitality can be legitimately taken into account in assessing the due process issue. In a similar context, involving the Silicosis and Dust Disease Fund, we rejected the due process argument in the following language: "First we note that the fund and related tax on employers is for a valid public purpose. The preservation of important segments of Michigan’s industrial base with the associated benefits to the state is a legitimate goal. This is especially true when the threat to these employers springs from statutory compensation requirements. As noted in an early unemployment compensation case, Carmichael v Southern Coal & Coke Co, 301 US 495, 514-515; 57 S Ct 868; 81 L Ed 1245 (1937): " 'the requirements of due process leave free scope for the exercise of a wide legislative discretion in determining what expenditures will serve the public interest.’ ” Stottlemeyer v General Motors Corp, 399 Mich 605, 614-615; 250 NW2d 486 (1977). The Legislature has determined that the public interest is best served by requiring Second Injury Fund payment of differential benefits only when a claimant can demonstrate total and permanent disability at a reasonable time. There is no violation of due process in such a reasonable legislative choice. The Court of Appeals, however, found a denial of due process, reasoning as follows: "To deprive employees whose industrial loss of use does not arise until after 500 weeks minus 30 days of both their statutory and common-law remedies before the right to bring suit is discovered would violate due process of law. Dyke v Richard, 390 Mich 739, 746-747; 213 NW2d 185 (1973). A statute which abolishes the right to sue before the cause of action arises is sustainable only if intended as an abrogation of a common-law cause of action. Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978). Such analysis is unreasonable in the instant case, as § 361(2)(g) was enacted for the purpose of defining a formerly unrecognized class of claimants. It is highly likely that when the Legislature added § 361(2)(g) to the act, defining a formerly unrecognized class of claimants, it included the statute of limitations as a means of confining the class to claimants with injuries that occurred within the last 500 weeks less 30 days and those injured in the future, thereby precluding resurrection of ancient claims by giving only prospective application to that section of the act. See Clark v Chrysler Corp, 377 Mich 140, 148; 139 NW2d 714 (1966), and Sanders v General Motors Corp, 80 Mich App 190, 194, fn 5; 263 NW2d 329 (1977). If the language was intended as a time limitation for the specific purpose of denying retroactivity, its continued presence is unnecessary.” (Footnote omitted.) 95 Mich App 388-389. We do not consider that Dyke is dispositive. The holding in Dyke is as follows: "Accordingly we hold that an action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.” 390 Mich 739, 747. The case at bar certainly does not come within Dyke’s prescription. First, it is not an action for malpractice. Second, the limitation is 500 weeks minus 30 days, not 2 years. Third, there is no showing that plaintiff in the exercise of reasonable diligence could not have timely discovered that he had suffered a permanent and total loss of industrial use, if indeed he did not discover it. Furthermore, Dyke was relied upon by the Court of Appeals in Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978), aff'd 410 Mich 1; 299 NW2d 336 (1980), in its holding that a legislative decision to abrogate a cause of action after the passage of a period of time, when proofs grow stale, is not an unreasonable exercise of authority. Since the WDCA was, from its inception, designed to abrogate an employee’s common-law cause of action, Oole justifies and authorizes the time limitation imposed by § 361(2)(g). Incidentally, whether or not the Court of Appeals was right in reading Clark v Chrysler Corp, 377 Mich 140, 148; 139 NW2d 714 (1966), as construing subsection (g)’s second clause as only limit ing retroactivity of the section as a newly adopted act and not establishing a future statute of limitations, 95 Mich App 389, that conclusion was in effect overruled by the legislative re-enactment of the same limitational provision in § 361(2)(g) in the revision of the WDCA by 1980 PA 357. To conclude, we hold subsection (2)(g) satisfies due process. Ill The Court of Appeals, having found the statutory limitation in § 361(2)(g) unconstitutional, remanded the matter to the WCAB, because the WCAB had found that plaintiff had failed to demonstrate Burke disability within that statutory limitation. We affirm the remand for a different reason. Whether particular testimony meets the test of Burke in establishing permanent and total disability is a mixed question of law and fact and consequently subject to our review. See, e.g., Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966); DeGeer v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974). See, also, Joseph, Causation in Workers’ Compensation Mental Disability Cases: The Michigan Experience, 27 Wayne L Rev 1079, 1094 (1981). The legal standard established in Burke v Ontonagon County Road Comm, 391 Mich 103, 114; 214 NW2d 797 (1974), reads as follows: "There is permanent and total loss of industrial use of both legs where, inter alia, "1. An employment-related injury in one or both legs causes pain or other condition that prevents use of both legs in industry. "2. The use of one or both legs, whether or not injured, triggers an employment-related injury or malady in any part of the body, including one or both legs, that causes pain or other condition that prevents use of both legs in industry.” The WCAB summarized its opinion that the Burke legal standard was not met in the following paragraphs: "Plaintiffs testimony above, taken at face value, does not meet the test of Burke, supra, in establishing permanent and total disability. Plaintiff says his left leg 'began to bother him’ around May of 1974. This statement is too vague for us to find as fact that at that time he had lost the use of that leg. Neither does the fact that plaintiff had been using a cane for three years meet the test of Burke, supra. ” "Dr. Lyons’ testimony that the first time plaintiff complained to him of his left leg was on September 17, 1974, two-and-a-half months after 500 weeks had expired, further helps defeat plaintiffs claim, particularly in light of plaintiffs testimony that Dr. Lyons was his only doctor. "Plaintiff simply has failed to sustain his burden of proof of total and permanent disability as required in the test of Burke, supra, within the period provided by subsection (2)(g).” The testimony’s reference exclusively to plaintiffs left leg undoubtedly arises from the fact that the WCAB had already found total incapacity because of plaintiffs right leg. See MCL 418.361; MSA 17.237(361). The WCAB, in concluding that plaintiffs testimony was "too vague” to meet the Burke legal standard limited its consideration to two points of evidence: (1) his left leg "began to bother him” around May of 1974; (2) his use of a cane for three years. If that were all the testimony there was, the WCAB’s conclusion might be justified. But the WCAB opinion indicates that the WCAB may not have properly applied the Burke legal standard, because other legally pertinent testimony was available. The other legally pertinent testimony is as follows. First, testimony of plaintiff: . 1— "I lose control of it [left knee] when I try walking”. 2— "I can’t bend, like a knee bend. I’m having trouble walking and also it bothers me when I even sit and watch TV or in bed.” 3— "They both [right and left knees] bothered me, sir”. Second, pertinent testimony of Dr. Lyons relating to the focal period of 30 days before 500 weeks: 1 — "A. Yeah. I did make a — here’s a note from ’73. I said my initial impression is that he shouldn’t be doing the type of work he did previously if he does a lot of walking. I said he could do a desk-type job or supervisory-type job if it did not involve a lot of walking. And this was discussed with him. ”Q. Your opinion hasn’t changed any at this time, has it, Doctor? "A. No, no.” The above additional testimony, all relating to conditions within the statutory period, certainly is much more specific than the WCAB’s statement that the plaintiff’s left leg "began to bother him”. In fact, it indicates that both legs were injured and that plaintiff’s injuries would prevent him from doing a job requiring a lot of walking, which his former job of foreman did require — his original injury even being caused by a fall from a ladder. He could only do favored work, which would not disqualify him from benefits attributable to the "permanent and total loss of industrial use of both legs”. Liesinger v Owen-Ames-Kimball Co, 377 Mich 158; 139 NW2d 706 (1966). The Burke legal standard could be said to be met if one considered the testimony adverted to except as to whether there is a causal connection between the original employment injury and the left knee injury. There is no indication of this consideration in the WCAB opinion. There is the following testimony relative to this legal requirement of Burke: "Q. O.K. Can you relate the — is there any casual [sic] connection between the left knee injury and his 1959 injury? "A. Well, most of the injury was on the right side at that time, but of course really at this stage the only way I could possibly relate it to that injury would be the fact that there’s been more stress placed on the left leg than on the right one because of he’s had to favor the right side, and if it’s related at all I’d say this could be a factor. The other possibility is whether or not he actually did injure it at the time of the original injury, but I don’t have very good documentation of the original injury to the left knee.” Whether this testimony, perhaps with the other testimony, in fact legally links the left knee to the employment injury requires WCAB determination, which does not appear in their opinion. It is for that reason we would remand to the WCAB. IV. Conclusion We hold that the plaintiff failed to show that § 361(2)(g) violates either equal protection or due process. The decision of the Court of Appeals is reversed as to the unconstitutionality of § 361(2)(g), but affirmed as to the order remanding the case to WCAB for determination consistent with this opinion on the merits. No costs, a public question. Kavanagh, Levin, and Blair Moody, Jr., JJ., concurred with Williams, J. 409 Mich 897 (1980). 1980 PA 357 renumbers the provision (3)(g) but the pertinent statutory language remains the same. Burke v Ontonagon County Road Comm, 391 Mich 103, 114; 214 NW2d 797 (1974). Apparently the closest thing to a definition of total incapacity is found in MCL 418.351; MSA 17.237(351), as follows: "While the incapacity for work resulting from a personal injury is total”. In practice, total incapacity is found by a referee in the first instance and may result, it appears, from any injury. Unlike "total and permanent disability” in MCL 418.361(2); MSA 17.237(361X2), total incapacity does not require the loss of or loss of industrial use of two members or incurable insanity or imbecility. Until the amendment of MCL 412.9; MSA 17.159 by 1965 PA 44, effective September 1, 1965, compensation for total incapacity could not exceed a period of 500 weeks. That amendment omitted the 500-week limitation and provided that "compensation shall be paid for the duration of the disability”, as does the present statute, MCL 418.351; MSA 17.237(351). Before 1965, compensation beyond the 500-week limitation was obtained upon a finding of permanent and total disability. Unpublished opinion, Docket No. 77-521, January 4, 1979. The Court of Appeals treated this statement as an alternate WCAB conclusion. "Furthermore, the board concluded that plaintiff had failed to prove permanent and total disability 'within the period provided by subsection (2)(g)’ ”. 406 Mich 1002 (1979). 95 Mich App 380; 289 NW2d 919 (1980). 409 Mich 897 (1980). Gose v Monroe Auto Equipment Co, 409 Mich 147, 162-163, fn 5; 294 NW2d 165 (1980), says this of subsection (g): "This provision is not a statute of limitations determining when a claim can be asserted, but rather a requirement that the permanency of the disability must be determined at a date within about 496 weeks of the date of injury.” While it may be argued pro or con whether the language of subsection (g) sets up a statute of limitations, the decision in the instant case assumes that a claim for total and permanent disability must be determined as of a date within about 496 weeks of the date of injury. ”Q. Mr. Johnson, I am not familiar with your background, but what was the nature of your occupation prior to your injury? "A. I was a foreman at Harnischfeger. ”Q. Did that require you to be on your feet quite a bit? "A. 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And the Court having also received the written consent of Judge Frankel to the imposition of a public reprimand, Joseph F. Eegnier, Executive Director, Judicial Tenure Commission. Marvin F. Frankel, in propria persona, respondent. Now, therefore it is ordered that the "Decision and Recommendation for Order of Discipline” is accepted by this Court and is adopted as its statement of censure. It is further ordered that this file shall be maintained as a public record.	[ -13, -88, 63, 37, 19, 27, -56, 26, -20, 3, 3, -15, 3, 4, -18, -42, -21, -51, -47, -59, -29, 41, 76, 39, 10, 11, -65, 10, -50, 0, -13, -8, 1, -17, -14, -37, 80, 8, 25, 10, 14, 1, 15, -25, -29, -66, -22, 33, -13, -48, 6, 103, 21, 31, 32, 30, 3, 0, -3, -12, -20, -27, 12, 57, 18, 37, 13, 18, 0, -12, 5, 7, 4, 1, 23, 40, 19, 18, 20, 6, -20, 10, 23, 36, 27, -35, 48, -12, 4, 8, -23, 17, -39, 13, -25, -22, -2, -52, 24, -16, -26, -7, 23, -11, -27, -12, 7, -11, 14, -4, 66, -16, -19, -62, -81, -5, 11, 49, 59, -30, -1, 5, -19, -13, -41, 36, 24, -60, 13, 22, -17, -6, 1, 0, 71, 40, 49, 17, 0, -59, 26, 23, 17, 19, -41, -24, -73, 32, 29, 22, 41, -24, 60, 38, 10, 27, -27, -27, 12, 27, 30, 44, -38, -48, 27, -35, -21, 32, -17, 30, 27, 53, 88, 24, -48, -52, -14, 73, 45, 51, -24, 14, -8, -33, -78, 63, -46, 19, -37, -41, -61, 36, 57, -2, 23, -21, -3, 41, 15, -13, -55, 43, -25, -19, -2, -23, -45, -26, -102, 29, 4, 22, -27, -28, 39, -43, 13, 22, -3, 24, -10, -30, -23, -21, -48, -13, 10, 56, -7, -14, 27, 53, -1, 2, 50, 60, 31, 59, 26, 7, -29, 13, -1, -8, -23, -1, 14, 32, -47, -47, -13, 34, 32, -15, -27, 58, 16, 54, 10, 29, 39, -55, 64, 45, -32, -13, 26, 69, 21, -50, 75, 0, -19, -20, 0, 25, 8, -51, 15, -18, 24, -31, -44, -26, -25, -21, 9, -59, -4, -21, 21, 23, 5, 44, 62, -40, -23, 30, -19, -64, -22, -19, -56, 6, 26, 34, -28, -7, 9, -32, 40, -47, 32, -23, -17, -1, -35, 8, 29, -26, -49, -23, 8, -35, -52, -38, 53, -2, 34, -10, 49, 0, -3, 5, 41, 28, -4, 23, -31, -13, 29, 2, -14, 28, -25, 21, -3, 26, -74, 4, -30, -10, 12, 61, -86, -15, -14, -28, 26, -21, 44, -12, -48, -31, 52, -13, 26, -50, 28, -35, 1, -51, -67, -50, -21, -56, 58, -90, 8, 38, -31, 61, 0, -6, 6, -42, -73, 35, -42, -58, 3, 10, -29, -28, -46, -9, 54, 27, 34, -4, -5, -17, -29, -5, 7, 31, -53, -23, 87, 33, 34, -5, 25, -14, 31, 2, 51, -5, 57, -52, -83, -31, 17, 66, 34, 13, 11, 21, 22, 61, 15, -48, -12, -5, -6, -29, 6, -21, 11, -18, -7, -17, -22, 66, -20, -37, -32, 33, -6, -70, 48, 1, 25, 7, -15, 33, 22, 7, -21, -37, -29, -5, -45, 0, -20, 56, -14, 20, 3, 3, -4, -22, 63, 87, 10, -59, -35, 17, 11, 4, 21, 9, -17, 0, -10, 25, -39, -58, -23, -64, -15, 0, -35, -9, -50, 29, -5, 30, -44, 48, 3, -7, -14, 42, -7, -34, -12, 41, 13, 11, 58, -25, 23, 20, 8, -21, -49, -30, 19, -20, 14, 2, 70, 11, -12, -12, 38, 11, -35, -5, 20, 5, -8, -14, 34, 46, -58, -54, 5, -58, 20, -22, -6, -10, 35, -17, -20, 11, -3, 27, 19, 10, -12, -17, -16, -41, 0, 11, 38, 19, 8, 21, 18, 22, -18, 36, -40, 43, -11, 25, 109, 5, -35, 20, 65, 63, 0, 20, -8, -63, 45, -49, 35, 10, 55, 2, 32, -18, 34, -73, -24, 11, -15, -18, -38, -29, -5, 16, 43, -7, 24, 50, 6, 13, 24, -25, 34, 16, 34, -61, -23, -79, -32, 37, 32, 88, 34, -6, 12, 15, -29, -78, -33, -43, 48, -26, -6, -28, 27, 17, 0, 66, 51, 6, -24, 31, -33, -39, -2, -44, 38, 18, -5, -42, 61, 30, 11, -16, 49, 48, 85, 10, 29, -63, 34, -81, 39, 27, -1, 41, -20, 7, -59, -7, -10, -2, -63, 2, 29, -12, -3, 55, 8, -18, -44, 55, 66, -49, -55, -27, -6, 50, -48, -11, -31, 66, 37, 82, -30, 23, -22, -49, -11, 25, 33, -16, 37, -19, 20, 33, -23, -14, -21, -20, -14, -22, 1, 22, 11, 43, -22, 9, -29, 57, -8, -28, 12, -32, 20, -37, -40, 27, -40, -50, -12, 18, -60, 8, 6, 19, 20, 2, -32, -7, 5, -9, 24, 1, -13, -15, -21, -15, -38, -43, 10, -12, -10, 41, -31, 27, 43, -12, 14, -26, 16, 64, 43, -7, -28, 32, -25, 9, 21, -6, 23, 23, 56, 12, 0, -23, 8, 23, -27, 26, -75, -30, -19, -32, -2, 34, -67, -27, -2, -58, 21, 25, -20, -70, -26, -20, 0, -44, -24, -24, 30, 48, 11, -14, -9, -9, 4, 2, -40, -15, -45, 45, -31, 34, -44, -3, -7, -8, -28, -22, 12, 27, 15, 15, -25, -22, 5, -5, 12, 39, -22, -39, -19, -42, -25, 29, 43, 4, 40, 2, -54, -31, -37, 19, 21, 13, -26, -39, 29, -77, 21, -28, -55, 72, 56, -6, 68, 11, 21, -25, 0, 10, 11, -55, -6, -30, -27, 31, 10, -29, 3, 23, -36, -24, 54, -22, 2, 22, 9, 21, -40, -51, 15, -23, -7, -3, -5, 0, -1, -59, 29, 26, 1, 14, -24, -25, 28, -1, 1, 56, 9, 9, 29, -2, -63, 10, 10, 69, 77, -14, 35, 11, -27, 40, 73, 39, 20, 2, -17, 42, 20, -27, -1, 12, 48, -25, 11, 20, 3, -18, 3, 5, -9, -59, 12, -31, 53, -29, 40, -60, -43, 30, -6, -1, -6, -37, -45, -36, -6, -26, 0, -8, -54, 11, -10, -14, -16, 56, -47, -51, -18, -9, -15, 76, 5, 20, -29, 10, -2, -10, -32, -25, -50, -12, -35, -15, 72, 29, -37, 32, -3, -49, -18, 0, -19, -17, -85, 6, -5, 2, -4, 17, -31, 24, 64, -40, 41, -46, -23, -11, -9, -4, -13, 33, 37, 22, 15, 17, -67, -59, -54, 3, -11, 8, -46, -4, 31, 32, -26, 38, 71, -16, 42, -60, 11, 9, -27, 0, -13, 4 ]
Williams, J. At issue in this wrongful death action is the trial court’s ruling which allowed defendant manufacturer to introduce evidence of citations for violations of safety and health standards promulgated under the Michigan Occupational Safety and Health Act (hereinafter MIO-SHA) issued to the nonparty employer of plaintiffs’ decedent because of decedent’s death. The trial judge, over the objection of plaintiffs before and during trial, allowed the employer’s safety engineer to read from a letter of an unknown Michigan Department of Public Health employee indicating that citations for MIOSHA violations were issued against the nonparty employer after decedent’s death was investigated by the Department of Public Health. It is plaintiffs’ contention on appeal that such testimony was prejudicial hearsay. The plaintiffs also argue that evidence of these citations should not have been admitted under Michigan case law which excludes evidence of a traffic ticket or citation in subsequent civil actions arising out of the same occurrence. We hold that the trial judge erred in allowing this evidence to come before the jury because it was prejudicial hearsay. MRE 801(c), 802. In addition, we hold that evidence of citations for violations of MIOSHA regulations issued to plaintiffs’ decedent’s nonparty employer is not admissible in this case when offered by a defendant manufacturer, because it is not material to the issues at trial. I. Facts On April 25, 1974, Brian Swartz, a 19-year-old employee of Baker-Perkins, was asphyxiated while cleaning a gimbal box which was a part of a large mixing machine manufactured by his employer, Baker-Perkins. Mr. Swartz was using a paint spray gun filled with Dowclene EC, a solvent which was manufactured by defendant Dow Chemical Company and distributed for industrial use by defendant McKesson Chemical Company. Prior to his death, the decedent had been spraying the inside of the gimbal box with the Dowclene chemical. Several hours afterwards, the decedent crawled inside the box to vacuum the residue left from the application of the chemical. Later, he was noticed missing by a fellow employee, and he was discovered lying unconscious inside the machine. Plaintiffs brought a wrongful death action claiming that the manufacturer and the distributor of Dowclene EC negligently failed to adequately warn of its dangerous propensities. The defendant Dow Chemical responded in part by answering that the sole proximate cause of the fatal accident was the negligence of plaintiffs’ decedent and of his employer. At trial, plaintiffs’ counsel, anticipating the introduction of evidence of the employer’s citations for violations of the MIOSHA regulations by defendant Dow Chemical, brought a motion in limine requesting the trial court to exclude such evidence. The trial court, after considering the argument, denied plaintiffs’ motion. Defendant Dow Chemical then called Baker-Perkins’ plant engineer and safety director to testify concerning the violations of the rules and regulations. On direct examina tion, he read into the record excerpts from a letter from the Michigan Department of Public Health which disclosed that his employer had been cited for violations of several regulations arising out of decedent’s death. At the conclusion of the trial, the jury returned a verdict of no cause of action in favor of both defendants. The plaintiffs appealed to the Court of Appeals which unanimously affirmed the verdict. That panel held that the introduction of evidence of the citations to decedent’s employer for purposes of barring plaintiffs’ recovery was not error. We granted leave to appeal in this case, directing the parties to brief the issues whether the trial court’s ruling which permitted the defendants to introduce evidence of citations for MIOSHA violations was error requiring reversal on the grounds of prejudicial hearsay and whether evidence of the citations was inadmissible as substantive evidence of conduct at issue in a civil case arising out of the same occurrence. II. Prejudicial Hearsay A. Alleged Hearsay The plaintiffs assert on appeal that objectionable hearsay statements were not excluded from the jury as prescribed by MRE 801(c) and 802. At trial, the plant engineer and safety director of Baker-Perkins, the decedent’s employer, which was not a party to this suit, read into the record excerpts from a letter from the Michigan Department of Public Health that "a citation for alleged violations for Rules 30 and 42 is enclosed”. The relevant testimony was as follows: "Q. Your investigation into this accident, did it disclose several violations of Michigan and federal regulations by Baker-Perkins? "A. Yes, it did. "Q. What violations were there, as found? "Mr. Polzin: Again, your Honor, I simply restate my objection to this. "The Court: I will overrule it. "A. The letter was sent by the [Michigan] Department of Public Health to Mr. William Stamm. "By Mr. Neering: "Q. Under the rules, we can’t have you reading correspondence. We won’t go into the reasons why. "Can you tell us what the findings were on these violations? "A. This investigation revealed that the employee assigned to clean the gimbal box and his rescuer were not provided the protection required. R 320.2430 [sic; 325.2430] and R 325.2442 and Rules 30 and 42. "Rule 30, Part 1, states: 'Before an unprotected person enters a process space, the atmosphere shall be thoroughly ventilated and tested to determine the presence of a respirable atmosphere. Precautions shall be taken to prevent the creation of a non-respirable atmosphere in the process space during the time that the person is inside.’ "Rule 30, Part 2, requires in the absence of ventilation or tests, persons capable, trained and equipped to perform rescue be stationed outside the process space to maintain surveillance over the man entering. "Rule 42 states where hazard exists because of atmospheres immediately dangerous to life or health, respi ratory protection equipment for the safeguarding of the worker shall be provided by the employer. "Photos showed liquid residue in the bottom of the box after the rescue and from the volatile nature of the sample from the bottom of the vacuum cleaner, it is most certain that a non-respirable atmosphere existed in the gimbal box at the time the victim entered the tank. "Surveillance was not maintained and a rescuer did not have protective equipment when he entered the tank. Accordingly, a citation for alleged violations for Rules 30 and 42 is enclosed. "Q. Were there also found to be violations of the OSHA, the federal regulations, as well as the Michigan regulations? "A. Yes, there was. "Q. Were they in substance on the same areas mentioned there that you just recited? "A. Practically the same thing. ”Q. So the violations relating to testing of the atmosphere was one thing, was it not? "A. Yes. ”Q. Lack of respiratory breathing equipment, right? "A. That’s right. ”Q. Lack of proper ventilation? "A. Right. ”Q. And lack of use of the buddy system? "A. Yes. I didn’t remember that, but I guess that’s part of it. ”Q. They used some big words there and a lot of them. That is what it boils down to? "A. Needed someone for rescuer, yes.” B. The Hearsay Rule Under MRE 801(c), we must decide whether out-of-court statements testified to by a witness in court which are offered as evidence to prove the truth of the matter asserted are hearsay. The witness for Dow Chemical testified before the jury about the written assertions made by an unidenti fied representative of the Michigan Department of Public Health which indicated that the nonparty employer was cited for plaintiffs’ decedent’s death. The plaintiffs claim that it was offered by the defendant to prove the truth of the matter asserted — that the nonparty employer was responsible for plaintiffs’ decedent’s death. When dealing with a hearsay problem, the emphasis centers upon the condition of cross-examination. Meaningful cross-examination has become a "vital feature” of the Anglo-American legal system. 5 Wigmore on Evidence (3d ed), § 1367, p 32. Underlying this rationale is the recognition that the value of many out-of-court statements is undercut because of the inability to test by cross-examination the veracity and competency of the out-of-court declarant from whom the witness has gathered his information. See generally Wigmore, § 1362, p 3. This Court, in Colgrove v Goodyear, 325 Mich 127, 134; 37 NW2d 779 (1949), recognized that the justification of the hearsay rule is the test of cross-examination. " 'The fundamental test, shown by experience to be invaluable, is the test of cross-examination. * * * It is here sufficient to note that the hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination.’ 5 Wigmore on Evidence (3d ed), § 1362.” It is the belief embodied in our legal system that cross-examination will expose and negate imperfections. The concern in the instant case over the inability to test by cross-examination is readily apparent from the record. When the witness on direct exam ination was asked whether he was aware of the relevant state and federal regulations which covered the employer’s responsibility in the decedent’s death, he indicated that he was not aware of many of the regulations. Yet his testimony, which included the reading of the health department’s letter, was allowed to go to the jury in order to influence a crucial element of the case when the accuracy of the out-of-court declarant’s letter and evaluation could not be tested by cross-examination. In fact, the in-court declarant, on recross-examination, did not even know whether the agency which administers the regulations had any authority over a manufacturer or seller of a product. Once a statement is found to be hearsay, it is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule. See Elliotte v Lavier, 299 Mich 353, 357; 300 NW 116 (1941). In the instant case, plaintiffs contend that no pertinent exceptions are found within MRE 803 or 804. Furthermore, defendant cites none to us, and we find none. The plaintiffs’ basic conclusion is correct. The only exception which is at all relevant to this inquiry is inapplicable on the facts of this case. MRE 803(8) allows statements from public records and reports to come into evidence over a hearsay objection. This rule, however, unlike FRE 803(8)(C), rejects the introduction in private civil actions of factual findings resulting from an investigation made in accordance with authority granted by law. Proposed MRE 803(8)(C), which was identical to FRE 803(8)(C), was found to be inconsistent with prior Michigan law and was rejected. Committee Note, MRE 803(8). C. Prejudicial Error The prejudicial effect of erroneously admitted testimony will vary from case to case, and its effect on the jury will depend on the facts and circumstances of each case. Once prejudicial error is found, this Court has adopted a rule of reversal. In Ilins v Burns, 388 Mich 504, 510-511; 201 NW2d 624 (1972), we stated: "Once prejudicial error is found, the cases call for reversal regardless of whether the trial judge gave an instruction in an attempt to cure the error. Potentially prejudicial error can be cured. Prejudicial error, however, implies a conclusion that the substantial rights of the party were affected. Such error calls for reversal and new trial.” (Footnote omitted; emphasis in original.) The basis for plaintiffs’ assertion of prejudice is found when analyzing the testimony of the witness who testified with respect to the MIOSHA violations. Defendant’s purpose in introducing the evidence of violations was to indicate to the jury that the negligence of the decedent’s employer was responsible for the decedent’s death. Obviously, this testimony was prejudicial. In fact, it was just about defendant’s entire case. Therefore, we hold that the out-of-court statements describing the citations for MIOSHA violations are prejudicial hearsay, and that they should have been excluded from the jury because they do not fall within a recognized exception to the hearsay rule. III. Immateriality In addition to the hearsay objection to the MIO-SHA citations, we raised the question whether the use of such citations is admissible as substantive evidence under Michigan case law in a negligence suit involving the same facts, but where the violations of MIOSHA regulations were not the gravamen of the lawsuit. Since such testimony does not relate to the issues in this case, rather than consider whether there is any applicable law on the merits, we hold that testimony to the effect that a complaint was issued for MIOSHA violations is inadmissible because such evidence is immaterial to the case. IV. Jury Instruction In the case at bar, the trial judge stated, as part of an instruction to the jury on the duty of defendant Dow that "[t]he law does not require a manufacturer to make its product accident-proof or foolproof’. The appellants claim that this instruction created a "straw man” which probably misled the jury in its deliberations. Elbert v City of Saginaw, 363 Mich 463, 482; 109 NW2d 879 (1961). The problem with this contention is that plaintiffs’ counsel, did not specifically object to this language at trial. The record indicates that the attorney for the plaintiff merely requested the trial judge to instruct the jury further that the concept of foolproof was not to be considered. This Court has made it clear that in the usual case an issue not properly raised or objected to at trial is not to be considered on appeal. The procedural justification for this rule is to provide the appellate courts with a sufficient record upon which to resolve the issue in a fair manner. People v Snow, 386 Mich 586; 194 NW2d 314 (1972), citing Meek v Wilson, 283 Mich 679, 689; 278 NW 731 (1938). Finally, the plaintiffs failed to raise this issue before the Court of Appeals, and they now ask this Court to grant them relief from alleged prejudice. The general rule is that a question may not be raised for the first time on appeal to this Court. Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). This rule is not fashioned in stone, but when a consideration of a claim is not necessary for a proper determination of a case, it will be applied. See Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965). See also Heider v Michigan Sugar Co, 375 Mich 490, 517; 134 NW2d 637 (1965) (Adams, J., dissenting). We think, therefore, that the issue raised should not presently be determined by this Court because it is not necessary in resolving the case. V. Conclusion In our opinion, it was error for the trial court to allow testimony concerning written statements made by an out-of-court declarant for the purpose of proving the truth of the matter asserted by an in-court witness. The inability of the plaintiffs to effectively cross-examine this unknown out-of-court declarant severely prejudiced their case, since the out-of-court statements indicated that there was another explanation of the fatality. We also hold that evidence of citations which deal with the violations of MIOSHA regulations by a nonparty employer, offered by a third-party manufacturer, is not admissible in this case because it is immaterial to the issues at trial. Accordingly, we reverse the decision of the Court of Appeals. Fitzgerald, C.J., and Kavanagh, Levin, Coleman, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J. The record seems to indicate that the conduct of the decedent’s employer violated regulations promulgated under both the Michigan Occupational Safety and Health Act and the federal Occupational Safety and Health Act. The federal act was passed December 29, 1970, and became effective 120 days after December 29, 1970. The Michigan act was approved on June 18, 1974, and became effective on January 1, 1975. The decedent died on April 25, 1974, so that the cited violations of the safety regulations included violations under the federal act and several Michigan provisions, MCL 408.852 et seq.; MSA 17.49(2) et seq., which were in effect before the Michigan Occupational Safety and Health Act became operative. For clarity purposes, however, we use the designation MIOSHA to refer to the violations of the various safety regulations because the testimony indicated to the jury, and it was briefed and argued in this Court, that the nonparty employer was cited for violating both occupational and safety acts. Moreover, MIO-SHA incorporated all regulations and standards promulgated under the federal act. See fn 3. A gimbal box weighs several tons. It is a machine base like a large box. It has a top which can open or shut and the box is eight feet wide. The federal Occupational Safety and Health Act, like the Michigan Occupational Safety and Health Act, is a creature of legislation. The major purpose of both acts is to regulate and reduce the exposure to dangerous conditions within a work environment, to impose an annual levy to provide revenue for safety education, and to provide remedies and penalties for violations. See 29 USC 651(b)(1)-(13); Preamble, 1974 PA 154, effective Jan. 1, 1975, MCL 408.1001 et seq.; MSA 17.50(1) et seq. Cf. Industrial Union Dep’t, AFL-CIO v American Petroleum Institute, 448 US 607, 641; 100 S Ct 2844; 65 L Ed 2d 1010 (1980). The Michigan act incorporates all federal standards which have been adopted or promulgated by the United States Department of Labor which were in effect at the time the act was adopted. MCL 408.1014(1); MSA 17.50(14)(1). When a rule or standard of MIOSHA is in conflict or covers the same area as the incorporated federal standard, the federal standard controls. MCL 408.1014(2); MSA 17.50(14X2). Swartz v Dow Chemical Co, 95 Mich App 328; 290 NW2d 135 (1980). 409 Mich 898 (1980). MRE 801(c) provides: " 'Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, olfered in evidence to prove the truth of the matter asserted.” MRE 802 provides: "Hearsay is not admissible except as provided by these rules.” Defendant Dow Chemical does not really address the hearsay issue in its brief. The defendant only argues that the admission of this testimony was not prejudicial. FRE 803(8)(O, like proposed MRE 803(8X0, provides: "P]n civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” The Michigan Trial Lawyers Association has filed an amicus brief, arguing that this Court, as a matter of public policy, should hold that the OSHA violations of a nonparty employer are not admissible when the defendant alleges the employer’s negligence as an unforeseeable intervening cause. See Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959). Defendant Dow responds that this was not their theory at trial, and this new issue misstates their position. We need not consider this argument as such testimony in this case is immaterial.	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Per Curiam. September 24, 1969, a three-judge panel of circuit judges ordered Sheldon II. Beck, a member of the State Bar of Michigan, suspended from the practice of law for one year. Mr. Beck appeals and raises four issues as the basis for appellate relief. A review of the record discloses ample support for the findings of professional misconduct on the part of Mr. Beck and justification for the order of suspension. None of the issues raised on appeal controvert the merits of the misconduct charges, and we find no reversible error in the proceedings below. Discussion of the issues raised on appeal would serve no purpose. Affirmed with costs to State Bar of Michigan.	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Blair Moody, Jr., J. The lengthy history of this case is as follows: 1. On August 24, 1968, a petition for workers’ compensation was filed by the plaintiff. 2. Hearings were held before Referee George Huber on May 6 and 27, 1969. 3. On July 14, 1969, the referee held that plaintiff was not entitled to compensation because he had not been peddling papers or acting as an employee of the newspaper at the time of the accident. 4. The Workmen’s Compensation Appeal Board (the board) affirmed the referee’s decision on November 10,1971. 5. The Court of Appeals, in an opinion authored by the now Justice Levin, reversed the board’s decision and remanded for further hearing before another referee. 42 Mich App 301; 201 NW2d 665 (1972). 6. On July 25, 1973, the new hearing was held before Referee Ray R. Ravary. 7. In a decision filed July 28, 1973, Referee Ravary opined that the plaintiff had suffered a compensable injury and ordered the defendant, Monroe Evening News, to pay compensation at the rate of $54 per week. 8. On March 12, 1975, the board, in a 4-to-l decision, affirmed the awarding of compensation but reduced the amount to $27 per week. 9. The Court of Appeals, in a 2-to-l decision, reversed the board’s decision, holding, as a matter of law, that the plaintiff was not employed by either the defendant or the substitute newsboy within the meaning of MCL 418.161(l)(b); MSA 17.237(161)(l)(b). 70 Mich App 407; 245 NW2d 769 (1976). 10. We granted leave to appeal on March 24, 1977. 399 Mich 869 (1977). This much-litigated and -appealed case stems from a simple fact situation. On February 4, 1966, Frank Handler was delivering the Monroe Evening News. Frank Handler was not the regular newspaper boy, but he substituted for Robert Edwards, the "owner” of the route, when Edwards participated in school athletic activities. Two five-year-old youngsters, Daniel Higgins, the plaintiff, and Frank Handler’s younger brother, Nicholas, accompanied Frank on a part of the newspaper route that day. While accompanying Frank Handler, the plaintiff sustained serious injuries when struck by a motor vehicle while crossing Elm Street in the City of Monroe. Throughout this litigation, two major fact questions surfaced: whether the plaintiff was actually delivering defendant’s newspapers when the accident occurred and whether he was promised remuneration for his efforts. Within the conceptual framework that defendant’s newspaper carriers are independent contractors, the second Workmen’s Compensation Appeal Board opinion answered these questions with specific findings of fact: "Under a contractual arrangement which had existed for approximately one (1) year prior to the injury involved herein, Frank Handler had agreed to act as a regular substitute for Bobby Edwards, a newsboy for defendant. For this service, Handler was paid approximately one dollar and fifty cents ($1.50) per day. In performing his end of the bargain, Handler had made use of the services of others, including his little brother and plaintiff, on a number of occasions as helpers in return for which he would buy them pop, candy or give them a dime. This use and hiring of substitutes and helpers by regular newsboys and substitutes was committed to and left within the absolute discretion of the carriers and substitutes by defendant. Indeed, the practice was not only well known to defendant but expected and required. Defendant neither claimed nor assumed any responsibility or control over the manner in which the newspapers were delivered or who delivered them. On the occasion of plaintiffs injury, February 4, 1966, plaintiff was helping Handler deliver newspapers, as he had in the past, for which assistance he had been promised remuneration in the form of either a bottle of pop, candy or a dime. ” (Emphasis added.) Findings of fact in workers’ compensation proceedings are conclusive in the absence of fraud, thus, we are bound by the board’s factual determination. Const 1963, art 6, § 28 and MCL 418.861; MSA 17.237(861). The dispositive issue in this case is whether a contract of hire existed between plaintiff and Frank Handler, the substitute newsboy. However, several related issues have been presented and considered by the board and the Court of Appeals; therefore, before reaching the dispositive question, four other issues will be addressed: 1. Is the applicability of the Worker’s Disability Compensation Act (the act) to an employment relationship dependent upon a minimum age requirement? 2. Is the applicability of the act to an employment relationship dependent upon a minimum wage requirement? 3. Assuming an employment relationship between plaintiff and defendant, was there a basis for concluding that plaintiff’s employment was illegal under the Hittle Juvenile Employment Act and, therefore, for awarding double compensation? 4. If the employment was not illegal because of the statutory exception created by MCL 409.14; MSA 17.714, is that provision of the Hittle Juvenile Employment Act unconstitutional as a denial of equal protection? We answer all four questions in the negative. The Worker’s Disability Compensation Act defines employee as: "Every person in the service of another, under any contract of hire, express or implied, including aliens, a person regularly employed on a full-time basis by his spouse having specified hours of employment at a specified rate of pay, working members of partnerships receiving therefrom wages irrespective of profits[,] a person insured for whom and to the extent premiums are paid based on wages, earnings, or profits, and minors, who shall be considered the same as and have the same power to contract as adult employees(Emphasis added.) MCL 418.161(l)(b); MSA 17.237(161)(l)(b). Thus, the statute expressly provides that minors (without age limitation) are to be considered employees and have the legal power to contract. If the Legislature intended to impose age barriers to compensability it could have expressly inserted such limitations in the appropriate statutory provisions. Nowhere in the act is there even a hint of age limitation, nor is there any judicial authority for such a proposition. Age may be considered as one factor among many when determining whether an employment relationship exists. However, once an employer-employee relationship is established, an employee may not be barred from compensation recovery because of age. Nor can the triviality of the consideration or remuneration to an employee be used as a barrier to receiving compensation. Neither the statutory provisions nor case law supports such a proposition. In fact, §418.371 which specifically provides for calculation of wage loss compensation for part-time employees refutes any allegation that a minimum wage or number of hours worked per week are necessary in order to receive compensation. MCL 418.371; MSA 17.237(371). The statutory provisions dealing with computation of compensation use a sliding scale based upon weekly wage loss with minimum and maximum rates, the maximum rates to be adjusted on an annual basis. MCL 418.351; MSA 17.237(351) and MCL 418.355; MSA 17.237(355). Therefore, we specifically hold that the amount of employee remuneration alone cannot act as a bar to disability compensation payments. Hearing Referee Ray Ravary found that the defendant was liable for double compensation because the plaintiff was too young to secure a work permit, thereby making his employment illegal. The act requires that the employment "be shown to be illegal” at the time of the injury for the employee to receive double compensation. MCL 418.161(l)(b); MSA 17.237(161)(l)(b). The board reversed the double compensation award after examining the existing statutes defining illegal juvenile employment. We agree with the reasoning of the board. Our statutes, MCL 409.14; MSA 17.714 3and MCL 409.28; MSA 17.728, create a "street trade” exemption for newspaper distribution from the gen eral rule that it is illegal to employ a minor who is too young to obtain a work permit. Since the employment of minors in "street trades” is not illegal, and the distribution of newspapers is a "street trade”, work permit requirements do not apply to paperboys. Plaintiff argues that this "street trade” exemption of the Hittle Juvenile Employment Act is an unconstitutional denial of equal protection. We adopt Court of Appeals Judge T. M. Burns’ succinct and accurate refutation of this argument: "Legislation is invalid on equal protection grounds if it creates classifications which are without reasonable bases and are purely arbitrary. Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). It is clear to me that there are rational bases for permitting children under the age of 14 to work as paperboys while generally prohibiting their employment in other occupations. The working hours and conditions of children who deliver newspapers are sufficiently distinct from those in other industries in which children were historically employed, and the perceived benefit of this type of work experience for children properly supports its encouragement. It is also reasonable to assume that the health risks and employment abuses which existed in other areas of child labor were considerably different in both kind and degree from that of newspaper distribution. "The legislative decision to permit children to deliver newspapers while generally prohibiting their employment in other businesses is reasonably related to the legislative goal of preventing child labor abuses. It was certainly not unreasonable for the Legislature to effectuate the distinction by making it an exception to a general rule of prohibition. MCL 409.14; MSA 17.714 is valid.” Higgins v Monroe Evening News, 70 Mich App 407, 418-419; 245 NW2d 769 (1976) (dissent). The final, dispositive issue in this case is whether the plaintiff was acting under a contract of hire with Frank Handler and, thus, an employee for purposes of the Worker’s Disability Compensation Act, at the time he was struck by the automobile and seriously injured. Factually, it was established that Frank Handler promised reward of a dime, bottle of pop, or candy to the plaintiff if he helped deliver the newspapers. Other testimony indicated that the plaintiff had actually delivered at least one newspaper to a house on the day of the accident and that it was not the first occasion on which plaintiff had assisted in delivering defendant’s newspapers. Based upon these facts, both Referee Ravary and the board found an assigned task (delivery of newspapers) and consideration offered (a dime, bottle of pop, or candy) amounting to a contract of hire. However, the Court of Appeals majority reversed the compensation award: "Certainly a literal reading of the statute in relation to the facts found by the board would incline us to find plaintiff an employee. However, we cannot follow this course where a literal interpretation would lead us to a result clearly contrary to the legislative intent. "On balance, we are convinced that the Workmen’s Compensation Act was never intended to provide compensation for a person in the position of this plaintiff. Consequently, we hold, as a matter of law, that plaintiff was not employed by either the defendant or the substitute newsboy within the meaning of MCL 418.161(1)(b); MSA 17.237(161)(1)(b).” Higgins, supra, 413, 415. We agree that under the circumstances of this case, an employment relationship did not exist between the parties. Although findings of ordinary facts are binding upon the Court if supported by any evidence, finding the requisite contract of hire in the instant case involves reaching a legal conclusion. Therefore, the board’s finding that a contract of hire existed between Handler and the plaintiff is reviewable by this Court. The existence or non-existence of the requisite contract of hire can be gleaned from only one source — Frank Handler, the substitute newsboy. The following testimony is representative of Handler’s explanation, on cross-examination, of plaintiff’s participation in delivering newspapers: ”Q. And before you went out on the route, you didn’t make any kind of an arrangement with him or make any kind of a deal where you said if you come on and help me with the papers, I’ll pay you so much, did you? "A. Let’s see. I was at the house. Nicky and Danny were there. ”Q. What were they doing? "A. I guess they were playing. ”Q. All right. "A. And I asked them if they wanted to go on the paper route with me. I asked them if they wanted to go and I told them that if they wanted to — I mean I told them I’d give them a dime or something or I’d buy them something if they went and helped me. That was down by the landing, just by the side door. ”Q. Now the reason that they were coming along with you is because your mother wanted to get them out of the house, isn’t that true? "A. Yes, I believe that, yes. "Q. Do you know why she wanted to get them out of the house? "A. Yes, I think Robin was sick or something. "Q. And who is Robin? "A. My little sister. "Q. So was that your mother’s — it was at your mother’s suggestion then that you asked them to get out of the house and come along, isn’t that correct? "A. Well, no. I don’t think so. She was going to get them out of the house and it was — you know, I’d give them something to do. She never told me, you know, why don’t you take the kids with you, no. ”Q. Now what specifically did you tell them you were going to give them at the time, if anything? "A. I told them I’d give them a dime or buy them a pop or something, candy bar. "Q. Did you list all these alternatives or are you saying that you might have offered or discussed one of these things? ’A. Do you mean I just asked them? You mean just told them I’d give them a dime or what? ”Q. What did you say? Did you give them a whole list of things that you might do? ’A. I told them if they wanted to go and help me I’d give them a dime or buy them a pop or a candy bar. ”Q. And did you then buy a candy bar for Nicky? ’A. Afterwards? "Q. Yes. ’A. No. ”Q. Did you give Nicky a dime afterwards? "A No. "Q. You didn’t give him anything, did you? 'A No. ” (Emphasis added.) As previously stated, the referee and the board majority found an assigned task (delivery of newspapers) and consideration offered (a dime, bottle of pop, or candy). From those two fact findings, the board concluded that a contract of hire existed between Handler and the plaintiff. This legal conclusion ignores a major principle of contract law. Valid consideration for a contract cannot be presumed merely because two parties receive benefit from each other. Rather, a bargained-for exchange is required. The essence of consideration, therefore, is legal detriment that has been bargained for and exchanged for the promise. Calamari, Contracts (1st ed), § 53, p 105. The two parties must have agreed and intended that the benefits each derived be the consideration for a contract. Thus, to reach the conclusion that a contract of hire existed, we must be able to state that each of the two parties, Handler and the plaintiff, intended to suffer a detriment to receive a benefit, and that they agreed to exchange those detriments and benefits. It must be found that Frank Handler promised payment to the boys in exchange for their help in delivering papers, and that the plaintiff agreed to help deliver the papers because in exchange he would receive a dime, bottle of pop, or candy. We cannot reach the legal conclusion that a contract of hire existed between Handler and the plaintiff upon accepting the factual findings of the board and reviewing all the testimony. To the contrary, Frank Handler’s testimony illustrates a social relationship, wherein he gratuitously promised to give the plaintiff a dime, bottle of pop, or candy if he helped Handler in delivering the papers. Handler stated that the boys went along to deliver the papers because his mother wanted the children out of the house. Handler repeatedly used the gratuitous term "give” when referring to the boys. "I’d give them something to do.” "I’d give them a dime or buy them a pop or a candy bar.” Handler did not "give” his little brother Nicky anything after delivering the papers on the day of the accident, illustrating a gratuitous promise rather than a contract of hire. Arthur Larson’s classic treatise on workers’ compensation law explains that normally the performance and acceptance of valuable service raises the implication that payment for services is expected and a contract of hire is formulated, however, in at least three common situations, circumstances negate the implication. 1A Larson, Workmen’s Compensation Law, § 47.41. The. present facts fit within the framework of the second category: "minor children helping their parents or others without an express contract of hire”. 1A Larson, Workmen’s Compensation Law, § 47.41(b). This distinction is not predicated upon a bias against children but upon a common sense recognition of the nature of the relationship. The rationale for this category is understandable. Children frequently "help” neighbors and relatives run errands and do odd jobs, while receiving minor gratuitous rewards. Usually these associations are not based upon an employment relationship. Although we view this unfortunate injury to the plaintiff sympathetically, we do not find the requisite contract of hire. The Court of Appeals is affirmed. Costs to appellee. Williams and Coleman, JJ., concurred with Blair Moody, Jr., J. Ryan, J. (to affirm). I agree with both Justices Moody and Kavanagh that the "street trade” exemption of the Hittle Juvenile Employment Act, MCL 409.14; MSA 17.714, does not constitute an unconstitutional denial of equal protection. In addition, I agree with Justice Moody that the Court of Appeals decision in this case, which found as a matter of law that plaintiff was not employed by either defendant or the substitute newsboy, must be affirmed. I reach that conclusion for a different reason, however. While this Court is bound by the factual findings of the Workers’ Compensation Appeal Board, Const 1963, art 6, §28 and MCL 418.861; MSA 17.237(861), there is no evidence in the record of this case, or the facts found by the board, to sustain the legal conclusion that plaintiff was "* * * in the service of another, under any contract of hire, express or implied * * MCL 418.161(l)(b); MSA 17.237(161)(l)(b). Consequently, notwithstanding our compassion for this seriously injured child, there is no entitlement to workers’ compensation benefits. Kavanagh, C.J. (to reverse). Facts This is a workers’ compensation case in which plaintiff appeals to this Court from an adverse ruling in the Court of Appeals. 70 Mich App 407; 245 NW2d 769 (1976). On February 4, 1966, Robert Edwards, the regular newscarrier for defendant Monroe Evening News, arranged for his substitute, Frank Handler, to complete a portion of his paper route. Accompanied by his five-year-old brother, Nicholas, and his brother’s five-year-old friend, plaintiff Daniel Higgins, Frank Handler set out to deliver papers. While on the paper route five-year-old plaintiff Higgins was struck by a car and is now, as a result of his serious injuries, a paraplegic. On August 24, 1968, plaintiff filed a petition for benefits under the Worker’s Disability Compensation Act. After the initial hearing, the referee held that plaintiff was not entitled to compensation because he had not been peddling papers and hence was not an employee of the News at the time of the accident. This decision was affirmed by the Workmen’s Compensation Appeal Board. The Court of Appeals reversed and remanded for further consideration. Higgins v Monroe Evening News, 42 Mich App 301; 201 NW2d 665 (1972). After hearing on remand, the referee held that plaintiff had suffered a compensable injury as an employee of the News and awarded him benefits of $54 per week. On appeal, the board affirmed but limited plaintiff’s benefits to $27 per week. Testimony taken during the hearing conflicted with respect to certain critical facts: (1) whether plaintiff Higgins at the time of the accident or at any other time had actually delivered papers for substitute Handler and (2) whether Handler had promised plaintiff compensation for his assistance. The board found affirmatively on both counts and said in its opinion: "The testimony establishes that a promise of consideration in the form of remuneration by way of a dime, bottle of pop or some candy was made to plaintiff in return for his help in delivering newspapers and that this had not been the first time that plaintiff had helped.” 1975 WCABO 456, 470. The Court of Appeals again reversed, holding that the Worker’s Disability Compensation Act "was never intended to provide compensation for a person in the position of this plaintiff”. Higgins v Monroe Evening News, supra, 70 Mich App 415. This Court granted leave to appeal to consider the following three issues. I Are factual fíndings of the Workmen’s Compensation Appeal Board binding on a reviewing court? Michigan appellate courts will not disturb the factual findings of the Workmen’s Compensation Appeal Board unless there is an absence of record support for those findings. Carter v Kelsey-Hayes Co, 386 Mich 610; 194 NW2d 326 (1972), Braxton v Chevrolet Grey Iron Foundry Division of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976). Const 1963, art 6, § 28 provides that "[findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law”. MCL 418.861; MSA 17.237(861) provides that: "The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state.” In the instant matter the referee found, and the board affirmed the findings, that plaintiff was an employee of Frank Handler, who was an employee of Robert Edwards, who was an independent contractor hired by the defendant to deliver papers. Since there was evidence in the record to support these factual findings we will not disturb them. II Is the "street trade” exemption provision of the Hittle Juvenile Employment Act unconstitutional as a denial of equal protection? The hearing referee agreed with plaintiff’s contention that because plaintiff was too young to secure a work permit, his employment was illegal and he was therefore entitled to double compensation under MCL 418.161(l)(b); MSA 17.237(161)(l)(b). The Workmen’s Compensation Appeal Board reversed that determination, finding plaintiff’s em ployment legal under the "street trade” exemption for newscarriers. MCL 409.14; MSA 17.714. Since the majority opinion of the Court of Appeals found as a matter of law no employment relationship between plaintiff and defendant, the remaining issues, including the instant one, were not addressed. We agree with the appeal board’s disposition that plaintiff’s employment was legal because it falls within the "street trades” exemption to the Hittle Juvenile Employment Act. Further, we find no merit in the plaintiff’s contention that the "street trades” provision works a denial of equal protection by denying all newscarriers the protection afforded other minors under the Hittle Juvenile Employment Act. Because we find his reasoning cogent, we adopt the position taken by Court of Appeals Judge T. M. Burns in his dissenting opinion: "Legislation is invalid on equal protection grounds if it creates classifications which are without reasonable bases and are purely arbitrary. Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). It is clear to me that there are rational bases for permitting children under the age of 14 to work as paperboys while generally prohibiting their employment in other occupations. The working hours and conditions of children who deliver newspapers are sufficiently distinct from those in other industries in which children were historically employed, and the perceived benefit of this type of work experience for children properly supports its encouragement. It is also reasonable to assume that the health risks and employment abuses which existed in other areas of child labor were considerably different in both kind and degree from that of newspaper distribution. "The legislative decision to permit children to deliver newspapers while generally prohibiting their employment in other businesses is reasonably related to the legislative goal of preventing child labor abuses. It was certainly not unreasonable for the Legislature to effectuate the distinction by making it an exception to a general rule of prohibition. MCL 409.14; MSA 17.714 is valid.” 70 Mich App 407, 418-419; 245 NW2d 769 (1976). Ill Did the Court of Appeals err in holding as a matter of law there was no employment contract between plaintiff and defendant? The Court of Appeals reversed an award of compensation ordered by the Workmen’s Compensation Appeal Board, finding as a matter of law no employment relationship between the parties to this litigation. Whether a contract of hire may be inferred from the conduct, language or other pertinent circumstances of a relationship is a matter of fact which may not be prescinded from the factfinder if any of the facts are in dispute. See Chaffee v Stenger, 361 Mich 57; 104 NW2d 805 (1960); Holcomb v Bullock, 353 Mich 514; 91 NW2d 869 (1958); and Erickson v Goodell Oil Co, Inc, 384 Mich 207; 180 NW2d 798 (1970). The facts and legitimate inferences were in dispute here and the board resolved the dispute, finding a contract of employment existed. The Court of Appeals majority refused to give effect to the literal language of the statute, saying: "Certainly a literal reading of the statute in relation to the facts found by the board would incline us to find plaintiff an employee. However, we cannot follow this course where a literal interpretation would lead us to a result clearly contrary to the legislative intent.” (Citations omitted.) 70 Mich App 413. Without the assignment of any ambiguity in the portion of the act they construe, the Court of Appeals nevertheless concluded that the Legislature could not have intended coverage of the plaintiff in this case. As a general rule, statutory language is construed consistent with its plain meaning. Only when statutory language is found to be ambiguous are reviewing courts free to look to legislative intent in an effort to understand and give effect to the words used. Here the Court of Appeals majority did not state what the "legislative intent” was nor how they determined it. Neither did they point out a basis for their conclusion that the finding of a contract of employment would be clearly contrary to it. We have carefully considered People v McFarlin, 389 Mich 557, 563; 208 NW2d 504 .(1973), cited by thé Court of Appeals, and find it inapposite. We do not find the statute’s definition of employee ambiguous: "Every person in the service of another, under any contract of hire, express or implied, including * * * minors, who shall be considered the same as and have the same power to contract as adult employees.” (Emphasis supplied.) MCL 418.161(l)(b); MSA 17.237(161X1)0»). Neither do we find it necessary to consider some unstated legislative intent. An employment relationship does not turn on whether an employee depends upon the contract for his livelihood or whether his motive in entering into it was to obtain remuneration. Accordingly we reject defendant’s argument that because plaintiff here was supported by his parents and was motivated by social rather than monetary considerations no contract of employment existed. The tender age of plaintiff here should not influence the determination of employment, for the statutory direction that minors be considered the sáme as adult employees with the same power to contract makes age irrelevant. Defendant’s contention that the promise of "a dime, bottle of pop, or candy bar” cannot constitute consideration for a contract is also unpersuasive. Carriers delivering newspapers deal in pennies. Handler, the substitute carrier, was paid approximately $1.50 a day by Edwards for delivering papers. It is consistent with that scale of compensation that Handler’s helpers would be paid smaller amounts for their less responsible and less time-consuming efforts. There are other facts in the record which provide support for the board’s finding that plaintiff is an "employee” within the meaning of the act. The newspaper business relies primarily upon youngsters for door to door delivery. Testimony given at the hearing by the individual who acted as its treasurer, secretary and business manager established that the defendant, Monroe Evening News, required its regular carriers to find substitutes when they were unable to work. "Q. So you do know that Bobbie Edwards is permitted to hire substitutes to go out and take care of his job for him? "A. It is his responsibility to find somebody else to carry his route if he is not there. ”Q. You do not exercise any supervision over that activity? "A. That is right. "Q. He can have whoever he wants? "A. That is right, he can have his grandmother. "Q. And age is no bar? ’A. No, because we have no responsibility as to who carries the paper. We go into a contract with whoever and it is up to him to find a substitute.” 1975 WCABO 472-473. The board properly found that the substitute carriers and helpers, such as Higgins, were part of defendant newspaper’s distribution system. Defendant could have guarded against the use of very young helpers by limiting or supervising the carrier’s authority to hire substitutes and helpers. The board observed:. "It is not our function to engage in an exercise in apologetics for the realities of the relationship created between defendant and its carriers. This looseness in method of operation is the creation and responsibility of defendant. Different rules could have been established but were not. Having, created the system, defendant must assume responsibility for the legal consequences.” 1975 WCABO 471-472. We do not share the fear expressed by both defendant and the Court of Appeals that affirmance of the award in the instant matter will dangerously extend the act into an "entirely new dimension”. 70 Mich App 414. We share the conviction expressed by the appeal board: "Given the facts there is nothing astonishing or earthshaking about the result reached herein.” 1975 WCABO 472. The board’s factual determination that a contract of employment existed between plaintiff and defendant warrants the award to plaintiff of benefits for injuries sustained in the course of his employment. The judgment of the Court of Appeals is re versed and the award of the Workmen’s Compensation Appeal Board reinstated. Costs to appellant. Levin and Fitzgerald, JJ., concurred with Kav-ANAGH, C.J. Levin, J. (to reverse). The act defines the term "employee” as meaning "[e]very person in the service of another, under any contract of hire, express or implied, including * * * minors, who shall be considered the same as and have the same power to contract as adult employees.” MCL 418.161(l)(b); MSA 17.237(161)(l)(b) (emphasis supplied). Imposing on youngsters a higher burden of proof or persuasion and applying a more stringent standard of appellate review than for adults, as would the lead opinion, conflicts with the legislative directive that minors "shall be considered the same as” adult employees. (Emphasis supplied.) Although the claimant in the instant case was not an adult, the question is "the same”: was the claimant in the service of another under a "contract of hire”? Age may not be considered as a factor "when determining whether an employment relationship exists”. I The lead opinion states that there could be no "contract of hire” unless the substitute newsboy and Higgins "agreed” to an exchange of intended benefits and detriments, and unless Higgins so agreed "because” in exchange he would receive a dime, bottle of pop, or candy. A workers’ compensation claimant, adult or minor, need not, however, show either an "agreement” with his employer or that but for promised compensation he would not have performed the work. A contract of hire need not be bilateral, it may be unilateral: an offer of compensation which may be accepted by doing the expected work. If such an offer is made and. the expected work is performed, there is a contract of hire although there was no bilateral agreement and although the worker might have performed the work gratuitously, if asked to do so, out of a desire to be helpful or to satisfy some personal desire of participation in the enterprise or other motivation. An employer who has offered compensation may not refuse to pay benefits to an injured worker who performed expected work because there was no bilateral agreement, nor may he seek to prove that the worker might have performed the work gratuitously if the employer had asked him to do so and had not offered or promised compensation. Moreover, Higgins proved to the satisfaction of the WCAB that compensation was offered dr promised, from which it would be reasonable to infer i) that it was thereby sought to induce him to work, ii) that he was thereby so induced, iii) that he worked "because” of such inducement, and iv) that such inducement and work were an intended exchange of "benefits” and "detriments”. Assuming that Higgins must show that he worked "because” of the offer or promise of compensation, it was for the WCAB, not this Court as a matter of law, to resolve that factual issue and in so doing draw the inferences in the application of the principles adverted to in the lead opinion to the evidence produced by the parties. II The sense of the act is that where the work of the principal (Monroe Evening News) is contracted out to an exempt or uninsured employer it is as responsible as if the injured worker has been "immediately employed” by it. Therefore to focus on the Handler-Higgins relationship is too narrow. Newspaper publishing is a business that extensively employs youngsters to deliver to the door. Newscarriers indisputably are entitled to the benefits of the workers’ compensation act; it is a question of fact, not of law, whether, at the time of injury, Higgins was engaged in such work under a contract of hire as part of the distribution system of the Monroe Evening News. A newspaper employee testified that if a carrier was absent for a day, "[t]hey would ask him to either get a substitute or they would replace him”. He also said "when they can’t deliver the papers, it is up to them to find a substitute”. "[H]e can have his grandmother.” A practice developed of using helpers. The newspaper did not limit carrier authority to hire substitutes and helpers, nor did it supervise the hiring. In the situations adverted to in the lead opinion, where claimants who contributed their services were denied compensation, the entire class of workers to which the injured worker belonged were regarded as volunteers who worked gratuitously. Higgins, in contrast, was doing the same work that others who would be entitled to benefits were doing. It is not appropriate to deny benefits as a matter of law because Higgins was younger and what he was to receive was of lesser value or because there would be no coverage had he been doing like work for a friend or neighbor rather than as part of the newspaper’s distribution system. The expressed concern about workers’ compensation liability being imposed upon parents or neighbors for household chores performed by youngsters is misplaced; under the act "no private employer” is liable to any person who is employed by him as a "household domestic servant for less than 35 hours per week for 13 weeks or longer during the preceding 52 weeks” and a "wife, child or other member of the employer’s family residing in the home” is specifically excluded from the definition of "household domestic servant”. The question whether exceptions should be made to the general scope of coverage for service at charitable or patriotic institutions has been the subject of legislation in a number of states and of judicial opinions reaching varying results in the same and differing factual situations. The Court need not today intimate a view regarding the scope or legitimacy of exceptions for social situations, or where the service is rendered to a charitable or patriotic organization. The implication of broad and undefined exceptions into the workers’ compensation jurisprudence of this state is inappropriate. The business of publishing a newspaper has none of the earmarks of a social, charitable or patriotic undertaking. It is not expected that anyone, even if young or very young, will deliver newspapers gratuitously. This conceptual framework is adopted in the instant case for two reasons: (1) Throughout the litigation the relationship between the defendant and its newsboys has been treated factually as one of principal — independent contractor. (2) The issue presented is not the nature of this relationship, the distinction between employees and independent contractors, but the existence of the employment relationship itself. "Nothing in this act shall apply to or prohibit any minor from engaging in: “(a) Street trades, except as prohibited under section 23. "(b) Domestic work or chores in connection with private residences. "(c) Farm work. "(d) Employment in a trade in which the parent or duly appointed guardian of such minor is self-employed. “(e) Employment in a business owned and operated by such parent or guardian. For the purposes of this provision, a business shall be deemed to be owned by such parent or guardian if he is either the sole owner, partner or stockholder therein and shall be deemed to be operated by him if he devotes substantially all of his normal working hours to the operation of such business. "In the event that such minor is required by law to attend school, then such work may only be performed outside of school hours. "(f) Employment on a camp site of a nonprofit corporation engaged in citizenship training and character building during periods of school vacations.” MCL 409.14; MSA 17.714. "The term 'street trade’ shall be deemed to refer to any 1 or more of the following occupations: "(a) Soliciting subscriptions for newspapers, magazines or other periodicals; "(b) Distributing, selling or offering for sale newspapers, magazines, periodicals, advertising matter; "(c) Boot blacking; "(d) Selling or offering for sale of popcorn, peanuts, candy, fruit and soft drinks in concessions owned and operated by a boy scout troop, girl scout troop, or any other youth organization. "Provided, That the same is conducted in a public place.” MCL 409.28; MSA 17.728. See MCL 418.171; MSA 17.237(171), concerning the liability of an employer who contracts with another person. In Hall v State Compensation Insurance Fund, 154 Colo 47; 387 P2d 899 (1963), where it was held that a Blue Lady "was rendering services as a volunteer”, Blue Ladies as a group were held to be exempt, not a particular Blue Lady. Similarly, see Enderby v Industrial Commission, 12 Wis 2d 91; 106 NW2d 315 (1960). MCL 418.118; MSA 17.237(118). See 81 Am Jur 2d, Workmen’s Compensation, §§ 116 et seq., pp 801 et seq.; 99 CJS, Workmen’s Compensation, §§ 69 et seq., pp 285 et seq. The exception adverted to in one of the cases cited in the lead opinion is statutory, Camphill Village USA, Inc v Workmen’s Compensation Board, 23 NY2d 202; 243 NE2d 739; 296 NYS2d 129 (1968); and in another case the court declared that a factual finding that the services were not undertaken pursuant to a contract of hire should be sustained, Enderby v Industrial Commission, supra.	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Fitzgerald, J. Plaintiffs in this malpractice case appeal from a jury verdict of no cause of action against defendants. Three issues are raised by plaintiffs’ application for leave to appeal: 1) Whether the conduct of defendants’ counsel, in interjecting improper innuendos of a conspiracy between plaintiffs’ counsel and expert witnesses to render untrue and collusive testimony, deprived plaintiffs of a fair trial and required granting of a mistrial or a new trial. 2) Whether the sudden interruption of plaintiffs’ counsel’s closing argument by someone seeking emergency medical attention from defendant physicians, and the subsequent viewing by some of the jurors of defendant physicians’ administering medical treatment to a woman lying on the floor of a nearby courtroom resulted in denial to plaintiffs of a fair trial and required the granting of a mistrial or a new trial. 3) Whether the trial court committed reversible error by refusing to instruct the jury that defendant hospital was negligent as a matter of law in allowing an intern, not licensed to practice medicine in Michigan, to provide medical care. The Court of Appeals answered these questions in the negative and affirmed the jury verdict of no cause of action. We disagree on the first issue and reverse. I. Facts Plaintiffs in this medical malpractice case are the parents and guardian of a now permanently and irreversibly brain-damaged child, Kyle Kern. Defendants are the hospital and physicians who took part in the child’s care when he was brought to them for diagnosis and treatment. On August 14, 1969, Kyle, whose age was then 14 months, became sick at his stomach and began to vomit. The child’s father came home from work around 6 p.m., and his mother called defendant firm of pediatricians. One of the firm’s physician employees advised Mrs. Kern to take the child to St. Luke’s Hospital emergency room. At the hospital emergency room the child was examined by defendant Dr. James Adams, a medical school graduate who had just begun his internship in July of 1969. Dr. Adams took a history of the child which indicated that the child had been vomiting repeatedly with the vomitus becoming greenish. Dr. Adams performed an examination of the child and concluded that the child had gastroenteritis, an irritation of the stomach and intestines. The child was given a Compazine supposi tory and prescribed a light diet of skim milk and baby aspirin every four hours. Mr. and Mrs. Kern took their child home, and the child slept in their room throughout the night. When Mr. Kern got up and went to work at 7 a.m. on the following day, the child was still sleeping. However, at 11 a.m., after being fed some skim milk, the child began vomiting again. Mrs. Kern called defendant firm of pediatricians and received further dietary instructions. In a later call, made after the child could not keep down either skim milk or cola, Mrs. Kern was told to bring the child to the pediatricians’ office. He was there examined by defendant Dr. Jarvi and defendant Dr. Heaven-rich. A mass seemed to be present in the child’s abdomen, and a possible bowel blockage by intussusception was diagnosed. Arrangements were then made for the child’s immediate admission to the hospital. At the time of admission, the admitting intern, Dr. James O’Brien, had a telephone consultation with Dr. Jarvi and sent Kyle to St. Luke’s Department of Radiology for a barium enema. The barium enema and X-rays were done by defendant Dr. Caumartin. Dr. Caumartin felt an abdominal mass before the barium enema but could not detect a mass afterwards. The X-rays and barium enema did not indicate an intussusception or bowel blockage, although Dr. Caumartin saw a small rounded shadow which he perceived to be a polyp. Dr. Caumartin reported these findings by telephone to Dr. Jarvi. On the evening of August 15, 1969, Dr. Jarvi visited Kyle in the hospital and brought in defendant Dr. Rice, a surgeon, to join in the child’s care. Dr. Rice felt a round mass in the child’s abdomen and recommended that the barium enema be repeated. On the following morning, Saturday, August 16, 1969, Dr. Rice found that the barium enema had not been repeated, but due to what he perceived to be the child’s improved condition, he no longer thought it was necessary. However, Mr. and Mrs. Kern testified that they were at the hospital from 11 a.m. to 7 p.m. on Saturday and that the child was listless, sick, and vomiting. Kyle’s parents further testified that during this eight-hour period, their son was not seen by a physician. Dr. Rice indicated that he thought he saw the child on Saturday night, when he performed an appendectomy at St. Luke’s Hospital, but the hospital’s operating room records showed that no such surgery was performed on the evening of August 16, 1969. On Sunday morning, Kyle’s condition became worse, and at noon Dr. Rice operated. He found a bowel blockage by intussusception with about six inches of intestine gangrenous, which he removed and then rejoined the bowel. Kyle’s postoperative recovery appeared to be normal, and his parents went home, but were called back when the child’s temperature became extremely high due to the gangrene. As a result, Kyle suffered permanent and irreversible brain damage and is now totally disabled. Plaintiffs filed suit against defendants claiming that defendants were negligent in not diagnosing and treating Kyle in a timely manner and that such negligence was the cause of Kyle’s permanent and irreversible brain damage. During the trial, which lasted from May 29, 1974 to June 26, 1974, plaintiffs introduced testimony of two physicians from Philadelphia and one physician from New York to support their claim that defendants failed to diagnose and treat the bowel blockage in a timely manner. A fourth physician, Dr. Feltoon, assisted plaintiffs in the preparation of the case, but was not called as a witness. Defendants’ experts, who were from Saginaw, Midland and Detroit, testified that there was no negligence in the diagnosis and treatment. The jury returned a verdict of no cause of action. On September 17, 1974, the trial court denied plaintiffs’ motion for a new trial. The Court of Appeals affirmed on August 25, 1976 (unpublished per curiam, Docket No. 21789). Leave to appeal was granted by this Court on April 29, 1977. 399 Mich 893 (1977). II. Issues Plaintiffs argue that they were denied a fair trial by the conduct of defendants’ counsel in interjecting improper innuendos, not based in the evidence, of a conspiracy between plaintiffs’ counsel and expert witnesses to render untrue and collusive testimony. The Court of Appeals held that in view of the length of the trial and the volume of the record (almost 2,500 pages), the remarks about which plaintiffs complain did not constitute reversible error. We disagree. Throughout the trial defendants’ counsel attempted to show that plaintiffs’ counsel and plaintiffs’ medical advisor, Dr. Feltoon, had conspired with three out-of-state physicians to provide "bought and paid for” testimony. Defendants’ counsel repetitively probed for evi dence of a conspiracy to render untrue and collusive testimony during cross-examination of plaintiffs’ experts, but were unable to elicit any such evidence. On May 31, 1974, the third day of the trial, plaintiffs called the first of their three medical experts, Dr. Kaplan, a neurologist from New York City. On cross-examination, Dr. Kaplan was questioned as follows: ”Q. Is this the first time you had met Mr. Dean was a conference in New York? "A. Yes. "Q. How did Mr. Dean happen to come to you? "A. Originally? ”Q. Yes. "A. I have no idea, I think you better ask him. ”Q. I would like to ask you. "A. I don’t know. "Q. Did you inquire of him out of all the neurologists in the world he happened to walk into your office in New York City? ’’A. I did ask him — I may have asked him, I don’t recall. Sometime ago. I will say this, that I have seen over the past 25 years a large number of problems that have medical-legal aspects in terms of injuries to the nervous system. "I am a consultant for the City of New York in this kind of problem although I don’t know if that has anything to do with it. "Q. We will get into your medical-legal experience, Doctor. "Did anyone else contact you before Mr. Dejan contacted you to arrange this conference with Mr. Dean? "A. Not that I recall, not that I recall. "Q. Did Mr. Dean call you personally to ask for an appointment or did he merely call your nurse or receptionist and ask for an appointment? "A. I don’t recall that. I think perhaps most likely he spoke to me initially to discuss the case and problems and whether I would be willing to review the medical records. "That is usually what might happen. This is not the first time I reviewed medical records of problems. "I think thereafter on the basis of my review of the medical records arrangements were made to examine the child. ”Q. Do you know when you had this conference with Mr. Dean? "A. I don’t recall the exact date, I don’t have it here, but within the last two or three months. "Q. Is the first time you had a conference with Mr. Dean? "A. A physical confrontation, yes. "Q. Yes? "A. That’s correct. ”Q. Have you talked to any other medical personnel . about this case before meeting with Mr. Dean? "A. No, sir. ”Q. I notice you discussing something with a gentleman in the back, do you know who that is? "A. Dr. Feltoon. I met him last night. "Q. Dr. Feltoon? "A. Yes. "Q. You did not know Dr. Feltoon before? "A. Before last evening? ”Q. Last night. "A. No. "Q. Did you stay in one of the local motels? "A. I did, at the Holiday Inn East, I think it is. ”Q. Dr. Feltoon stayed at that motel? "A. I believe so, yes.” After detailed questioning about the amount of testimony Dr. Kaplan had provided in malpractice cases and his experience in medical-legal matters, defense counsel returned to the subject as follows: ”Q. Doctor, once again, you have no idea how Mr. Dean happened to contact you? "A. No, I don’t.” On the next day of trial, plaintiffs’ counsel, anticipating a continuation of this defense strategy, sought to confine defense counsel to proper impeachment questions and moved in chambers that "counsel for the defense be instructed not to ask irrelevant and immaterial questions regarding the relationship of the plaintiffs’ expert witnesses, namely Dr. Chodoff and Dr. Edeiken, as to any — in such a way as to reflect any impropriety or conspiracy or improper actions; that Dr. Feltoon is not going to be with us [sic, a witness] in this case”. The court reserved ruling on this objection and allowed defendants’ counsel to continue along their line of inquiry. On the same day plaintiffs presented the testimony of Dr. Chodoff, a general surgeon from Philadelphia. On cross-examination defense counsel continued their inquiry as follows: "Q. Doctor, when did you first receive notification of this lawsuit? ”A. Couple years ago, I don’t remember the exact date. ”Q. How did you become aware of this lawsuit? "A. Frankly, I do not remember now, it has been so long ago, I think Mr. Dean contacted me but I am not 100 percent certain. ”Q. How did it happen Mr. Dean contacted you? 'The Court: If you know. "A. If I know, no, I don’t know. I can speculate, but I don’t know. "Q. Has he contacted you in the past? "A. No. "Q. This was the first time he had ever contacted you? "A. Yes, sir. "Q. Do you know Dr. Feltoon? "A Yes, sir. ”Q. Have you worked with Dr. Feltoon on numerous malpractice lawsuits? "A. No, I know him socially. ”Q. You know him socially? "A. Yes, sir. ”Q. Might it be Dr. Feltoon arranged for you to meet with Mr. Dean? "A. As I said, I don’t know, it may be possible. ”Q. You have no memory one way or the other? "A. No, I haven’t, really, it’s too long ago. ”Q. Two years ago? "A. At least two years ago.” It is clear that despite the zeal and persistence of defense counsel in their search for a conspiracy among plaintiffs’ attorney, medical advisor, and expert witnesses to render collusive and untrue testimony, all that was revealed by cross-examination was that some of these physicians had known each other in the past or presently knew each other casually or by reputation. However, defense counsel did not abandon this strategy for want of a reasonable basis in evidence, but instead, during their final argument, continued to inject this false issue for the jury’s consideration. Returning to the question of why plaintiffs had happened to consult with Dr. Kaplan, defense counsel rhetorically asked: "How did Mr. Dean find you, of all the neurologists in the United States; of all the neurologists in Grand Rapids, in Detroit, Highland Park, any place in Michigan, any place in the United States? How did Mr. Dean suddenly call up one day, on Sixth Avenue in New York City, and say, 'Dr. Kaplan, come testify for me, come examine this baby. Don’t do a darned thing for the baby; don’t talk to the doctor, don’t find out what’s being done for him, just get on that stand and say the baby is going to live forever.’ "I asked him, and I made this big gesture (indicating) 'How in the whole world did Mr. Dean know to call you,’ and his answer was, 'I don’t know. Ask Mr. Dean.’ ” In reference to Dr. Edeiken’s testimony, defense counsel stated: “Now, first of all, why did he come here? He’s head of the Department of Radiology. He’s the Chief of the Department. This isn’t his field of radiology, although he is a competent, trained radiologist. "He says, 'In my hospital we have a specific pediatrics radiologist who does this kind of thing.’ Well, if he’s the Chief, if he’s the head, and he really thought something was wrong or that pediatric radiologist — why didn’t he tell that pediatric radiologist to come on down? Maybe it has something to do with the strange Dr. Feltoon in the courtroom, his social friend who he went to medical school with; the same Dr. Feltoon that Dr. Chodoff knew.” Defense counsel also referred to plaintiffs’ expert medical witnesses as "those three cohorts” who had come to court to testify against their clients. Similarly, defense counsel referred to plaintiffs’ expert Dr. Chodoff as "the fellow that came in here to do my client in. That’s kind of blunt but that’s what he is here for. * * * Now I’m not going to knock anybody but he came all the way here from Philadelphia to do Dr. Rice in * * * .” After defendants’ closing argument, plaintiffs’ counsel moved for a mistrial because of defense counsel’s reference to the "strange Dr. Feltoon”, or in the alternative a curative instruction. In declining to grant a mistrial, the court stated: "The Court: Yes, I’m doubtful that that’s legitimate argument to a jury. To permit a jury to speculate on something like that would, in the opinion of the court, be improper, but I’ll let you answer it any way you like. "If you had objected at the time, the court could have ruled on it at that time and told the jury to disregard it. To revive it at this stage of the proceedings is, in the opinion of the court, not necessary or warranted by the circumstances.” During his final summation, plaintiffs’ counsel attempted to respond to the unsubstantiated insinuations of defense counsel relating to the testimony of out-of-state physicians by discussing the difficulty in obtaining the assistance of local physicians in the preparation of a malpractice case. Defense counsel objected to plaintiffs’ counsel arguing the "conspiracy of silence” on the basis that there was no evidence in the record of such a conspiracy. The court agreed, stating that it "would not permit an argument of that kind”. The record discloses that, by the time the jury retired to deliberate upon a verdict, defendants’ counsel had succeeded in conveying the message that plaintiffs would not have relied entirely on out-of-state physicians to testify for them had their case been a meritorious one. In Wayne County Board of Road Commissioners v GLS LeasCo, 394 Mich 126; 229 NW2d 797 (1975), a condemnation case involving a similar "battle of experts”, this Court reversed a verdict for plaintiff upon finding that the improper con duct of plaintiffs counsel, in attacking defendant’s witnesses by "innuendo and unfounded accusation” of rendering collusive and untrue testimony, had deprived defendant of a fair trial on the merits. With respect to plaintiff Wayne County’s strategy of attacking defendant’s expert witnesses, this Court stated: "These comments represent more than the mere reproof of recalcitrant witnesses. They constitute unjustified, direct attacks on the integrity and honesty of LeasCo’s witnesses. There is no evidence that these witnesses testified falsely, withheld information when stating that they did not know the answer to counsel’s questions, or manufactured false evidence. "Witnesses should not be subjected to personal attacks and unsubstantiated insinuations. Each party is entitled to present its case on the merits, free from remarks of opposing counsel which may prejudice the jury and divert its attention from the real issues.” 394 Mich 126, 134. Defendants rely on Firchau v Foster, 371 Mich 75; 123 NW2d 151 (1963), which involved an appeal from a trial court’s refusal to grant a new trial because plaintiffs counsel had referred to defendant as a "leech and a parasite”, to support their argument that their remarks concerning plaintiffs’ experts were within the limits of proper argument. However, we find that defendants’ reliance on Firchau is misplaced. While this Court acknowledged that "common experience seems to be that such breaches of good manners are more detrimental to the actor than the accused”, we went on to say: " 'Counsel may, acting on their own judgment as to propriety and good taste, discuss the character of witnesses, the probability of the truth of testimony given on the stand, and may, when there is any reasonable basis for it, characterize testimony.’ [Citation omitted.] "But where language is such as evinces a studied purpose to inñame or prejudice the jury, based upon facts not in the case, this Court has not hesitated to reverse.” 371 Mich 75, 78-79. (Emphasis added.) In the instant case, we do not view defendants’ remarks concerning plaintiffs’ experts as being merely "breaches of good manners”; we perceive a studied purpose to prejudice the jury and divert thegurors’ attention from the merits of the case. We are not confident that the verdict in the case at bar would have been the same had defendants’ counsel not continuously raised the groundless charge, by direct attack and innuendo, that the "bought” testimony of plaintiffs’ out-of-state expert witnesses was collusive and untrue. In a case as close and sharply contested as the instant one, we cannot believe that plaintiffs had a fair trial where defendants’ counsel succeeded in characterizing plaintiffs’ witnesses as "professional experts” who made their living traveling around the country as a trio providing "bought” testimony. We find that this accusation, which had no basis in evidence, was so prejudicial as to require a new trial. Since we reverse and remand for a new trial on the basis of the first issue raised by plaintiffs, we find it unnecessary to address the issue of whether the sudden interruption of plaintiffs’ closing argument by a person seeking emergency medical treatment denied plaintiffs a fair trial. The likelihood of a recurrence during a new trial of the type of interruption which was visited upon the trial proceedings is remote in the extreme. The last issue on appeal is whether the trial court committed reversible error by refusing to instruct the jury that defendant hospital was negligent as a matter of law in allowing an intern, not licensed to practice medicine, to provide medical care. The Court of Appeals held that an intern working in a hospital emergency room is not "practicing medicine” within the meaning of the then-applicable medical licensing statute,* * but is participating in a postgraduate training program. We agree. The fact that the completion of a one-year internship is itself a prerequisite to licensure negates a contrary ruling. We reverse and remand for a new trial. Costs to plaintiffs. Kavanagh, Williams, Levin, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J. A blockage caused by a telescoping of the bowel or intestine. “[A] general, descriptive term used with reference to any mass of tissue that bulges or projects outward, or upward, from the normal surface level, thereby being macroscopically visible as a hemispheroidal, spheroidal, or irregularly mound-like structure growing from a relatively broad base or a slender stalk.” Stedman’s Medical Dictionary, (4th lawyer’s ed), p 1120. It is interesting that in response to the suggestion that defense counsel had indirectly raised the issue of "conspiracy of silence”, defense counsel stated: "No, I didn’t; I didn’t. What I argued was the fact that these guys were bought-and-paid-for witnesses that ran around in a group and testified all over the country. That’s why I said, 'Who are these guys?’ Not that he couldn’t get anybody from any place else.” That the studied injection of a false issue to prejudice the jury may require a new trial, see, also, Morrison v Skeels, 16 Mich App 727; 168 NW2d 644 (1969); Lapasinskas v Quick, 17 Mich App 733; 170 NW2d 318 (1969); and Kakligian v Henry Ford Hospital, 48 Mich App 325; 210 NW2d 463 (1973) (opinion of V. J. Brennan, J.). 1899 PA 237; MCL 338.51 et seq.; MSA 14.531 et seq. was repealed by 1973 PA 185; MCL 338.1801 et seq.; MSA 14.542(1) et seq. See Rush v Akron General Hospital, 84 Ohio L Abs 292; 171 NE2d 378 (Ct App, 1957), which held that interns working in hospitals are not in violation of the state’s medical licensing statute.	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Per Curiam. The trial court and Court of Appeals upheld a provision in an automobile owner’s liability insurance policy excluding recovery for bodily injury by the insured owner who was a passenger in the car as against a driver who was driving with the owner’s permission. The driver of the car has applied for leave to appeal. Defendant Emily Sivey and her father co-owned a 1974 Ford Pinto which was insured by plaintiff State Farm. On March 3, 1974, Sandra Andary was operating the Pinto on 1-94 in Berrien County when she collided with a vehicle owned and operated by William Horace Kelly. Emily Sivey was a passenger in the Pinto at the time. Emily Sivey filed suit against Kelly and Andary in Macomb Circuit Court seeking damages for her injury. Andary claimed that she was protected by the policy issued by State Farm to Emily Sivey and her father. Consequently, State Farm filed a complaint for declaratory judgment, asking that the court find that the insurance policy "does not provide bodily injury liability coverage to the defendant, Emily Sivey, with regard to her accident injuries of March 3, 1974”. Andary responded with a prayer that the "company be ordered to provide a legal defense and liability coverage to the defendant Sandra Andary”. Plaintiff moved for summary judgment under GCR 1963, 117.2(3) and, on February 17, 1976, the trial judge granted the motion. The Court of Appeals affirmed in an unpublished per curiam opinion dated April 22, 1977. Andary repeats here the argument she advanced in the courts below: (1) that the policy exclusion State Farm relies upon is ambiguous and, therefore, should be construed against the insurer; and (2) that, in any event, the exclusion is void as contrary to public policy. The State Farm insurance policy issued to Emily Sivey and her father provides, in part: "Section I — Liability and Medical Payments Insuring Agreements "Coverage A — Bodily Injury Liability "Coverage B — Property Damage Liability "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of "(A) bodily injury sustained by other persons, and "(B) property damage, caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned motor vehicle; and to defend, with attorneys selected by and compensated by the company, any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient. "Exclusions — Section I "This Insurance Does Not Apply Under: "(h) Coverage A, to Bodily Injury to Any Insured or Any Member of the Family of an Insured Residing in the Same Household as the Insured; "Definitions — Section I "Insured — the unqualified word "insured” includes "(1) the named insured, and "(2) if the named insured is a person or persons, also includes his or their spouse(s), if a resident of the same household, and "(3) if residents of the same household, the relatives of the first person named in the declarations, or of his spouse, and "(4) any other person while using the owned motor vehicle, Provided the Operation and the Actual Use of Such Vehicle Are With the Permission of the Named Insured or Such Spouse and Are Within the Scope of Such Permission, and "(5) under coverages A and B any other person or organization, but only with respect to his or its liability for the use of such owned motor vehicle by an insured as defined in the four subsections above.” (Insurance policy’s emphasis.) The insuring clause and the exclusionary clause excerpted above reveal unambiguously that Sivey and Andary are named insureds under the policy and that State Farm is bound to insure the named insured with respect to bodily injury sustained only by persons other than the named insured. Since State Farm has promised to pay on behalf of the insured claims for bodily injury sustained by other persons, the terms "insured” and "other persons” must be read with reference to each other. In view of the fact that the word "insured” as used in the insuring clause is not qualified by any additional language, we must apply the above definition of the word "insured” according to the direction of the policy. The term "other persons” stands in contrast to and is mutually exclusive with the term "insured”. "Other persons” means those not having the status of the insured. The exclusionary clause corroborates this interpretation of the insuring clause by stating plainly, "This Insurance Does Not Apply * * * to Bodily Injury to Any Insured Since we have concluded that the exclusionary clause, if valid, would preclude Emily Sivey from recovering from State Farm pursuant to the policy, we must now address the question of whether the exclusionary clause is void as against public policy. The argument that such an exclusionary clause contravenes public policy was considered and rejected by a majority of the Court of Appeals panel in Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971). Specifically, the majority in that case found that an exclusion for named insureds in an automobile insurance policy did not violate either the Motor Vehicle Accident Claims Act or § 3010 of the Insurance Code. Then judge, now Justice, Levin dissented. In dissenting, he argued that the operation of such an exclusionary clause serves to render the driver of an automobile under circumstances such as are extant in the instant case uninsured for liability purposes. This, according to the dissent, contravenes the public policy of the Motor Vehicle Accident Claims Act which seeks to reduce claims against the Accident Claims Fund and the motor vehicle responsibility law which requires that an owner’s policy of liability insurance "[s]hall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles”. Specifically, the dissent argued: "Without a requirement that the insurance cover the driver as well as the owner, in any case where the insurance covers only the owner and the damages assessed against the owner and the driver exceed the amount recoverable from the owner, the injured person could proceed against the fund if the driver did not pay the excess. By requiring that the owner’s insurance cover the driver as well as the owner the Legislature sought to reduce claims against the accident claims fund arising out of unpaid claims against drivers. "One of the exclusions expressly permitted by the financial responsibility law is of 'liability fpr damage to property owned by, rented to, in charge of, or transported by the insured’. (Emphasis supplied.) This express authorization of an exclusion for damage to the insured’s property and the failure to authorize an exclusion for personal injury caused an insured further supports the view that no distinction may properly be drawn in the required personal injury insurance coverage based on whether the insured or someone else is injured or on whether the injury was caused by a driver using one vehicle or another. "The legislation which we construe is designed to protect the citizens of the state without regard to whether they might through the exercise of diligence and expenditure of funds otherwise protect themselves. The Legislature apparently concluded that the social problem of uncollected judgments against uninsured motorists requires such a paternalistic policy. There is no sound reason for supposing that the Legislature concluded that this comprehensive public policy should stop short of protecting an owner who is injured by a driver of the owner’s vehicle.” 36 Mich App 513, 527, 529, 530. MCL 257.520(b)(2); MSA 9.2220(b)(2), as noted supra, provides that all policies of liability insurance: "Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle”. As observed by the dissent in Weisberg, the only exception permitted by MCL 257.520; MSA 9.2220 is found in subsection (e) thereof: "Such motor vehicle liability policy need not insure any liability under any workmen’s compensation law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of any such motor vehicle nor any liability for damage to property owned by, rented to, in charge of, or transported by the insured.” Nothing in this statute suggests that the requisite insurance is limited only to liability imposed by law to third parties as opposed to liability to the named insured. Indeed, the expression of the one exception and the legislative silence to any others leads us to conclude that the Legislature intended that there be coverage in circumstances such as are present here. Therefore, we hold that the instant exclusion is against public policy because the operation of it prevents coverage required by the financial responsibility law. Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the lower courts and remand to the Macomb Circuit Court for entry of judgment in favor of appellant. No costs, a public question. Kavanagh, C.J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. MCL 257.1101 et seq.; MSA 9.2801 et seq. MCL 500.3010; MSA 24.13010. MCL 257.520(b); MSA 9.2220(b).	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Williams, J. The underlying import of our decision today is to determine whether working people with few assets are to have access to the appellate process, or are to be precluded from appeal by requiring excessive appeal bonds. These cases, consolidated on appeal from the Landlord-Tenant Division of the Common Pleas Court of Detroit (hereinafter Landlord-Tenant Court), involve the attempts of two working mothers to remain in homes they were purchasing pending appeal of what they claim were invalid foreclosures of their federally insured mortgages. This Court granted leave to consider whether the defendants’ appeal bonds, imposed to accomplish a stay in execution of writs of restitution, were properly set under the applicable court rule. We find that they were not. The Common Pleas Court Rule 46.11 requires a bond set on "reasonable conditions”. While that term is not defined in CPR 46.11, other sections ultimately lead us to DCR 754.10(3), the only available source defining "reasonable conditions”. DCR 754.10(3) states in relevant part: "[T]he reasonable condition for a defendant-appellant shall be that he shall pay into the trial court within five days of the date rent or payments are due under the lease or contract, a sum equal to the reasonable rental value of the premises, as determined by the court, as it becomes due after the time the appeal is ñled and during the pendency of the appeal. ” (Emphasis added.) Because "reasonable conditions” only include amounts that become due after the time of the appeal, and because appellants’ bonds were set so as to include amounts that became due prior to the time of the appeal, the bonds in this case were clearly not set on "reasonable conditions”. We therefore reverse and remand to the trial court to set bond in accordance with this opinion. I. Facts Defendant Carolyn Wingate, a working mother supporting her three children, bought her home in the City of Detroit on February 28, 1974. Absent a special program, Mrs. Wingate could not have made such a purchase because she had neither sufficient income nor assets to qualify for a conventional mortgage. She was able to effectuate the purchase of her own home only through Federal programs established by the Department of Housing and Urban Development (hereinafter HUD). See § 235 of the National Housing Act, 12 USC 1715z et seq. Pursuant to these programs, Mrs. Wingate executed a mortgage to Century Mortgage Corporation, which mortgage was first assigned to Continental Acceptance Corporation (hereinafter Continental), and thereafter assigned to Federal National Mortgage Association (hereinafter FNMA). Under a contract with FNMA, Continental acted as the servicing agent for the Wingate mortgage. Mrs. Wingate was laid off by her employer No vember 26, 1974, and was not called back to work until June, 1976. She was, therefore, unemployed for a period of 18 months. Presumably as a result of this, she fell slightly behind in her mortgage payments but was able to become current as of April, 1975. However, her next payment was not forthcoming until July 2, 1975, and her last payment was made October 22, 1975. Mrs. Wingate and Continental entered into a "forbearance agreement” which required the mortgagor to make double payments for a period of three months. Upon failure of the mortgagor to make further payments, FNMA, on March 15, 1976, hired a law firm to commence foreclosure proceedings. Pursuant to foreclosure, a public sale of the property was held on April 29, 1976, at which FNMA was the highest bidder and acquired a sheriff’s deed to the property. On September 29, 1976, Continental, still acting as servicing agent for FNMA, caused a 30-day notice to quit to be sent to Mrs. Wingate, and on January 5, 1977, summary proceedings were commenced in Landlord-Tenant Court. Mrs. Wingate attempted to present affirmative defenses to the summary proceedings, but these were ultimately disallowed and on April 21, 1977 a summary judgment was granted in favor of plaintiff FNMA. On November 31, 1973, Mary Jo Brown, a working mother supporting two children, executed a mortgage pursuant to the same HUD program involved in the Wingate mortgage and was thereby able to purchase a home in the City of Detroit. The mortgage was executed to Century Mortgage Corporation, subsequently assigned to Continental and finally assigned to FNMA. Mrs. Brown commenced mortgage payments on January 24, 1974 and was current on her mortgage as of October, 1975, despite the fact that she was laid off work for a 38-month period commencing December, 1973. She did not return to work until February, 1977. Mrs. Brown’s last mortgage payment was made in February, 1976 and in June of that year, Continental contacted attorneys for the purpose of foreclosing on the Brown mortgage. On September 2, 1976, the Brown home was sold at public sale. Again, FNMA was the highest bidder and acquired a sheriff’s deed to the property. On February 2, 1977, Continental, as servicing agent for FNMA, caused a 30-day notice to be sent to Mrs. Brown, and on March 15, 1977, summary proceedings were commenced. As in the case of Mrs. Wingate, Mrs. Brown’s affirmative defenses were disallowed and on April 29, 1977, a summary judgment was granted by the Landlord-Tenant Court in favor of plaintiff, FNMA. When Mrs. Wingate and Mrs. Brown both sought appeal to the circuit court based on a disallowance of the same affirmative defenses, their claims were consolidated for purposes of judicial economy. Appellants sought to have their appeal bonds set at the amount of the monthly mortgage payment for each month beginning with May 2, 1977, the date of the claim of appeal. However, on June 27, 1977, the Common Pleas judge denied their motion and ordered the bonds set as follows: a) for Carolyn Wingate, 108% of the monthly mortgage payment of $232, for each month since the claim of appeal, plus six months of back payments, to be paid by the 5th of each month. The first payment due July 5 thus included the nine months of November through July at $250.56 per month, or $2,255.04 to be paid within a week. b) for Mary Brown, 110% of the monthly mortgage payment of $194, for each month since the claim of appeal, plus two months of back payments, to be paid by the 5th of each month. The first payment due July 5 thus included the nine months of March-July at $213.40 per month, or $1,067 to be paid within a week. On July 1, 1977, defendants moved to reduce the appeal bonds in the Wayne Circuit Court on the grounds that they were set in violation of court rules, were clearly excessive, would deprive them of their right to an appeal, and would provide appellee with an unwarranted windfall. On July 15, the Wayne circuit judge denied their motion. On July 25, defendants filed an application for leave to appeal to the Court of Appeals which was denied on August 1, 1977. On August 8, 1977, application for leave to appeal was filed before this Court. Application was granted October 25, 1977, with a subsequent clarification of the issue granted on January 19, 1978. In this final order, pursuant to appellee’s motion for order setting bond pending appeal, the following order as to bond was handed down by this Court: "Appellant Wingate shall pay into the Common Pleas Court a sum equal to the total of the former monthly mortgage payments which would have been due on the property since October 25, 1977, or $232.00, within seven days of the entry of this order, plus $232.00 to be paid by the 25th of each subsequent month, until the disposition of this appeal before this Court. "Appellant Brown shall pay into the Common Pleas Court a sum equal to the total of the former monthly mortgage payments which would have been due on the property since October 25, 1977, or $194.00, within seven days of the entry of this order, plus $194.00 to be paid by the 25th of each subsequent month, until the disposition of this appeal before this Court. "If either appellant fails to make any timely bond payments, the stay of proceedings shall be dissolved as to that particular defendant only. However, if said appellant shall pay the required bond payment late, but before the execution of the writ of restitution, the stay of proceedings shall be reimposed as to that particular appellant.” 402 Mich 854 (1978). According to the records in this Court, neither appellant has failed to comply with the order. II. Issue The issue on which leave to appeal was granted is limited to whether the appeal bonds, as set by the Common Pleas Court and affirmed by the Wayne Circuit Court, are reasonable within the meaning of the applicable court rules, when they were set to include amounts owing prior to the appeal and penalties. III. Background It is difficult to understand the full import of this case without a discussion of the circumstances which comprise both the background of this litigation and the affirmative defense sought to be presented by defendants at the Landlord-Tenant Court. The atmosphere of the Detroit Landlord-Tenant Court where these cases originated does not encourage deliberate, reasoned and compassionate justice, although it deals with one of the basic material essentials of life, a roof over one’s head. Judges, litigants and court personnel are harassed and depressed. In many cases both the landlords and tenants are barely making it financially, and oftentimes they are not making it at all. Cases involve housing conditions that are not the most desirable. Consequently, relations are often strained and not infrequently beyond the breaking point. Many of the tenants do not understand their rights at all, although some understand them too well. Sometimes landlords are in the same posture. It would be difficult to handle these cases with justice in the best of circumstances. But circumstances are far from the best. The case load is incredible. The court facilities are just a little better than tolerable. Matters that can be avoided are avoided. This may be what generated this case but is not in issue here. Operation under such conditions obviously causes need for appeal from time to time. The underlying and real issue in this case, although not directly before us, involves the availability of invalidity of foreclosure as a defense in Landlord-Tenant Court. Appellants’ claim of invalidity is based upon plaintiffs alleged noncompliance with rules promulgated by HUD, which deal with the procedures a mortgagee should follow to avoid foreclosure. The mortgages granted appellee by these women are fully insured by HUD. The "'price” the mortgagee is supposed to pay for this 100% HUD guaranty against loss of money is to seek flexible means of assisting the mortgagors to avoid the loss of their homes. This is pursuant to the purpose of § 235 of the National Housing Act which is to provide a means through which the purchase of a home would be possible for persons of low to moderate income such as these defendants. To further the basic goals of HUD, that agency issued the HUD Handbook 4191.1, Administration of Insured Home Mortgages (Washington, DC: April 18, 1974), subsequent mortgagee letters, and recent Federal regulations. Chapter 8 of the Handbook deals with approved relief provisions. "121. Forbearance Relief. Mortgagees are expected to make a concerted effort to avoid, the foreclosure or assignment of HUD insured mortgages, and to utilize acceptable methods of forbearance relief, wherever feasible. Forbearance is available in several forms where it is reasonable for the mortgagee to believe that the mortgagor can and will resume the mortgage payments. Any of the relief measures discussed in this Chapter may be used and mortgagees are expected to refrain from foreclosure where it is determined that the case may be salvaged through the use of one or more of these procedures. ” (Emphasis added.) Specifically, in the case of the borrower’s unemployment or lay-off which are situations in which the mortgagee could be reasonably certain that payments would resume in the future, Chapter 8 of the HUD Handbook 4191.1 provides for forbearance (¶ 123 of the Handbook), recasting (¶ 125 of the Handbook) or assignment of the mortgage to HUD (TÍ126 of the Handbook). Although appellees assert that a "forbearance agreement” was unsuccessfully attempted in the Wingate case, as discussed in part I, that agreement required Mrs. Wingate to make double payments for a three-month period to bring her mortgage to a current status. Chapter 8 of the Handbook clearly demonstrates that this is not forbearance under HUD standards. Paragraph 123 of that chapter states that forbearance agreements can last up to 18 months without prior HUD approval, and that during this period the regular mortgage payment should be reduced or suspended. That paragraph goes on to assure the mortgagee who enters into a forbearance agreement that "it will receive, as part of its insurance settlement, unpaid mortgage interest, including all amounts accrued prior to the execution of the forbearance agreement * * * ”. The flexibility demonstrated in the Handbook is apparently intended to avoid situations such as exist in the City of Detroit which has an abundance of both boarded-up HUD houses and poor people who cannot find places to live. Certain recent cases have held that failure to comply with these rules could invalidate a foreclosure of a HUD-insured mortgage. Brown v Lynn, 385 F Supp 986 (ND Ill, 1974), reh den 392 F Supp 559 (ND Ill, 1975); Federal National Mortgage Ass’n v Ricks, 83 Misc 2d 814; 372 NYS2d 485 (1975); and Government National Mortgage Ass’n v Screen, 85 Misc 2d 86; 379 NYS2d 327 (1976). See, contra, Roberts v Cameron-Brown Co, 556 F2d 356 (CA 5, 1977); Hernandez v Prudential Mortgage Corp, 553 F2d 241 (CA 1, 1977). While the availability of invalidity of foreclosure as a defense to summary proceedings is not presently at issue before this Court, and we do not conjecture as to what we would hold if it were at issue, we do note that defendants’ present position has some precedential support in this state. This is the precise issue these defendants sought to raise in the form of an affirmative defense to plaintiffs claim for possession. However, the Landlord-Tenant Court held that the invalidity of foreclosure could not be raised as a defense in summary proceedings for possession under MCL 600.5714; MSA 27A.5714,* **** the statute under which this action was brought, and a summary judgment was granted plaintiff. Defendants sought appeal to the circuit court and sought a stay pending appeal to avoid eviction during the appellate process. Under these circumstances, plaintiff-appellee rightfully requested an appeal bond. However, appellants allege as the basis of this appeal that the bonds subsequently set by the Landlord-Tenant Court were prohibitive considering appellants’ financial circumstances, were excessive and unreasonable under the court rule and precluded their appeal of a jurisprudentially significant issue. We agree under the facts of this case. IV. Appeal Bond Money Requirements Unreasonable The right to appeal is not required under common-law principles or general notions of due process. It is generally legislatively granted and can be conditioned on any reasonable bases. See Note, The Right to Appeal, 44 J Urban L 505-506 (1967). One of the conditions normally imposed is that of an appeal bond to protect the appellee during the pendency of the appeal. Note, supra, p 509 citing Hanaw v Bailey, 83 Mich 24; 46 NW 1039 (1890). However, to avoid the harsh effect the bond requirement can have on the poor, the majority of states have enacted statutes which permit waiver of the bond requirement in the case of indigency. Note, supra, p 510; see GCR 1963, 701.8 and GCR 1963, 120. While in the instant case there is no contention that the bond requirement should be fully waived, appellants specifically assert that the appeal bonds, under the facts of this case, were not "reasonably conditioned” as required by the court rule because they contained penalties and were set at amounts so as to include sums which became due prior to the appeal. Appeals from the Landlord-Tenant Court in summary proceedings for possession are governed by MCL 600.5753; MSA 27A.5753: "Any party aggrieved by the determination or judgment of the court under this chapter may appeal to the circuit court of the same county. The appeal shall be made in the same manner as an appeal in other civil actions from the same court, with bond and procedure as provided by court rules. ” (Emphasis added.) "[0]ther civil actions” (and therefore this action) are governed by CPR 46.11(c), which reads, "An appeal shall not stay the issuance of a Writ of Restitution and proceedings pursuant thereto. If a stay of proceedings is desired, a bond shall be filed with the Claim of Appeal. Said bond shall contain a penalty to be fixed by the judge who rendered the decision. If the trial judge has not determined a bond and is not serving at the time of the appeal, another judge of the Landlord-Tenant Division shall determine the reasonable bond. If the appellant is unable to obtain sureties or a cash deposit in lieu thereof, he may have the bond without sureties or cash deposit upon such reasonable conditions as the court may determine. The bond shall be conditioned that the defendant will forthwith pay all rent due or to become due the plaintiff for the premises described in the complaint, or the rental value thereof together with costs, if the plaintiff prevails.” (Emphasis added.) In the instant case, appellants filed affidavits stating that they were unable to obtain sureties or make a cash deposit in lieu thereof. These affidavits were accepted by the Landlord-Tenant Court, and the bonds were set without sureties which, under the above court rule, requires bond upon "reasonable conditions”. As stated supra, the bond set by the court in each case was as follows: appellant Wingate was to pay 108% of the monthly mortgage payment of $232.00 or $250.56 for each month since the end of the redemption period ($2,255.04 through July of 1977), and appellant Brown was to pay 110% of the monthly mortgage payment of $194 or $213.40 for each month since the end of her redemption period ($1,067 through July, 1977). Each was given five days to pay these sums into the court. There is nothing in the Common Pleas Court Rules which defines "reasonable conditions” but CPR 39 directs that: "In all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern.” However, the General Court Rules also fail to specify what "reasonable conditions” shall be. Instead, GCR 1963, 754.9 requires the application of the District Court Rules. "In proceedings under RJA Chapter 57, the procedure in the district, municipal, and common pleas courts shall be governed by District Court Rule 754 together with the applicable statutory practice provisions and applicable local court rules. Appeals to the circuit courts shall be governed by Rule 705.” General Court Rule 705.9(a) did not define "reasonable conditions” but District Court Rule 754.10(3) does: "Bond on Appeal. If the plaintiff appeals, the bond shall be conditioned that, if defendant prevails, plaintiff will pay the costs of the action. If the defendant appeals, the bond shall be conditioned that, if plaintiff prevails, defendant will pay the costs of the action and, if the suit is for possession for nonpayment of a sum of money, that the defendant will pay the rental or con tract amount found due. When it shall appear by affidavit that appellant is unable to obtain sureties or make a cash deposit in lieu thereof, appellant may have the bond without sureties or cash deposit upon such reasonable conditions as may be determined by the court. If a judgment for possession has been entered for plaintiff, the reasonable condition for a defendant-appellant shall be that he shall pay into the trial court within ñve days of the date rent or payments are due under the lease or contract, a sum equal to the reasonable rental value of the premises, as determined by the court, as it becomes due after the time the appeal is hied and during the pendency of the appeal. ” (Emphasis added.) This definition of "reasonable conditions” makes clear that a bond set on "reasonable conditions” as required in the case of defendants who cannot obtain surety, can only include amounts due after the time of appeal. This limitation in the court rule is supported by case law which holds that the scope of an appeal bond must logically relate to its purpose or the right which the bond is meant to protect. This Court set forth the correct law in Kennedy v Nims, 52 Mich 153, 156; 17 NW 735 (1883): ’’The object of the bond is to save all the rights of the appellee,. without prejudice or diminution during the pendency of the appeal, and at the same time to prevent frivolous, vexatious and unnecessary appeals. It is not intended as an additional security for the original indebtedness of the delinquent party, but as an indemnity to the appellee against further trouble, expense and costs while the case is undergoing a review in this Court to ascertain whether or not error has been committed or injustice done the appellant by the decree of the court below. I do not think that under the findings in this case the surety in the appeal bond is liable for any portion of the deficit in the mortgage indebtedness.” (Emphasis added.) While in Kennedy the question being considered was not precisely that which we consider in the instant case, this does not alter the validity of this Court’s clear statement regarding the scope of protection of an appeal bond. We found the object to be the saving of "all the rights of the appellee * * * during the pendency of the appeal * * * as an indemnity * * * against further trouble”. In the instant case the only further trouble which might accrue to the appellee during the pendency of this appeal is the loss of payments which would become due during that period. By setting bonds upon reasonable conditions to prevent this loss, the lower court could have complied with both the spirit and letter of the law. To go further and require payments which became due before an appeal was sought is not within the proper objective of such a bond. Kennedy, supra. See also 4A CJS, Appeal and Error, § 500, p 203. V. Appellee’s Contentions Appellees, however, cite this Court to former GCR 1963, 701.7(3), in force when this action was instituted, and its amended version, GCR 1963, 701.8(a)(2), effective July 25, 1977, as authority for the inclusion of the past due amount within the appeal bond. The former rule provides in relevant part: "Bond on Appeal; Stay of Proceedings. Unless exempted by law, the appellant shall file a bond with his claim of appeal, cross appeal, or order allowing appeal. The bond on appeal "(1) shall be in a penalty not less than $200 and except for appeals from probate court, if the appeal is by a person against whom a claim has been asserted, it shall be not less than one and one-quarter the amount of the judgment or claim allowed. * * * In judgments for possession of land, the bond shall be in the amount and on the conditions provided for by statute. "(3) shall contain a condition that the appellant will prosecute his appeal with all due diligence, to a decision in the circuit court, and that if a judgment is rendered against him in such court, he will pay the amount of such judgment, including all costs, with interest thereon, and if his appeal is discontinued or dismissed that he will pay the amount of the judgment rendered against him, if any, in the lower court including all costs, with interest thereon and in cases involving the possession of land, he will pay damages from the time of the forcible entry, or detainer, or the notice to quit, or demand for possession as the case may be, and do any other act which shall be expressly named in the statute authorizing appeal as a condition of the appeal bond; * * * ."(Emphasis added.) It is. apparent that this court rule treats "amount” and "conditions” as separate. Specifically, in relation to "judgments for possession of land”, the rule states "the bond shall be in the amount and on the conditions provided for by statute”. The "amount” of the bond is fully covered in subrule (1), supra. The "conditions” are fully covered in subrule (3). While in the instant case only the "amount” of the bond is at issue, plaintiff-appellee asserts that one of the "conditions” authorizes setting the bond at a greater ",amountWe do not see the logic of this assertion. In subrule (3), supra, the "conditions” under which the bond is to be given are by their very language meant to be promises or assurances to be made by appellant in conjunction with a bond to stay proceedings. The first requirement is that "appellant will prosecute his appeal with all due diligence * * * ” and the second is that "if a judgment is rendered against him * * * he will pay the amount of such judgment”. Just as these cannot possibly be interpreted to impact the "amount” of the bond under subrule (1), the payment of which must be secured prior to stay, so the third condition that "in cases involving the possession of land, he will pay damages from the time of * * * demand for possession”, cannot be so interpreted. Indeed, the only logical interpretation is that all three are to be "promised” prior to the granting of a stay. Further, although the amended rule was not effective at the time the instant appeal bond was set, we note it retains the same distinctions.* Therefore, we find no . authority in these rules for extending the appeal bond in the instant case beyond the limitations of its purpose, see Kennedy, supra, and beyond an amount required as a "reasonable condition”. See CPR 46.11(c) and DCR 754.10(3). VI. Penalties Finally, appellants challenge the addition of a penalty in a case such as this where sureties cannot be obtained. The penalty provision under CPR 46.11(c) is additional protection against frivolous appeal and this is within the valid purpose of an appeal bond under Kennedy, supra. The court rule states that a bond "shall contain a penalty” (emphasis added). The same rule subsequently states that if "the appellant is unable to obtain sureties * * * he may have the bond * * * upon such reasonable conditions as the court may determine”. The use of the word "shall” in regard to the penalty provision leaves no option other than to find a penalty mandatory. However, the subsequent "reasonable condition” requirement must also be given effect. Therefore, when the appellant is unable to obtain a surety and the bond must thereby be set on "reasonable conditions”, the "penalty” provision must be examined within the context of reasonability. This involves an analysis of how much of a penalty is reasonable in light of appellants’ financial circumstances. Because of the availability of a complete record in the instant case, we note the following evidence of relevance to this determination. The appellants’ financial circumstances are such that bonds set too far beyond a requirement equal to the monthly mortgage payment as it becomes due during the pendency of the appeal would literally preclude exercise of the right to appeal in the instant case. From appellant Wingate’s affidavit that she was unable to obtain surety or make cash deposit, it was evident that she had three children, a take-home pay of $169.67 per week, child support totaling $37 per week, personal savings and belongings totaling approximately $125, medical debts of approximately $2,000 and a family who was unable to assist her financially. Appellant Brown’s affidavit evidenced that she had two children, a take-home pay of $220 per week, had no debts but also had no additiQnal sources of income such as child support, had personal belongings and savings totaling less than $100 and a family who was unable to assist her financially. This analysis does not disclose to us any reason for the amount of the penalty and the court, in assessing it, gave none. Therefore, on remand, when the trial court determines the proper penalty to be assessed, the reasons for doing so should be given so if there is further appeal, a proper decision can be made in light of the whole record. VII. Conclusion We do not question the need to protect the rights of an appellee in the case of a stay pending appeal. Appellee’s rights and interests are considerable and are recognized in both the court rules and case law of this jurisdiction. At the same time, there is no authority for going further and hindering the right to stay pending appeal by forcing appellant to give more than is required to protect appellee’s rights. Reverse and remand for entry of an appeal bond consistent with the findings in this opinion. Kavanagh, C.J., and Levin, Coleman, and Blair Moody, Jr., JJ., concurred with Williams, J. See part III, infra, for a discussion of defendants’ affirmative defenses. In concluding his opinion in the instant case, Justice Fitzgerald points out, "At the time the trial court fixed the appeal bonds, defendant Wingate had not made a mortgage payment in more than 21 months and defendant Brown had not made a mortgage payment in more than 17 months.” Defendants, in their motion to stay all proceedings pending decision on application for leave to appeal to this Court, do not dispute this fact, but state, "[Tjhese time periods are equivalent to the length of time it has taken these proceedings to reach the present stage, and do not reflect any willful or negligent refusal by the defendants to make payments. Indeed, during the bulk of these time periods, plaintiff would not accept any payment less than the complete outstanding mortgage value, in violation of the HUD regulations which form the basis for defendants’ affirmative defenses.” Chapter 9 of the Handbook, which deals with acquisition of the property by the mortgagee, states: "141. Acquisition — General. When the mortgagor either cannot or will not resume and complete the mortgage payments, the mortgagee shall take steps to acquire the property. In cases where the default is caused by a hardship beyond the mortgagor’s control, this decision shall be made only after all of the relief measures described in Chapter 8 have been considered, and the mortgagee has determined that none of them is likely to be effective in making it possible for the mortgagor to retain the property. Once the decision has been made, however, such action shall not be delayed.” (Emphasis added.) See also Ch 7, ¶ 110 of the Handbook: "Review Prior to Beginning Foreclosure Action. Foreclosure of a mortgage shall be undertaken only after the mortgagee or servicer has assured itself that the case has been handled in full accordance with the servicing practices outlined herein. When foreclosure is unavoidable, it shall be started promptly and pursued diligently in order to minimize the eventual loss.”, and Ch 9, ¶[ 144, "Foreclosure. Foreclosure is a last resort and shall not be initiated until all other servicing actions have been exhausted. HUD does not prescribe the method of foreclosure to be used by the mortgagee. The mortgagee is responsible for conveying good merchantable title to the property and for furnishing satisfactory title evidence when the property is conveyed to the Secretary, and the method of foreclosure is a concomitant to meeting this responsibility. Foreclosure shall be completed in accordance with local statutes and prevailing practices in the area in which the property is located.” Paragraph 126 of the Handbook was superseded by a HUD directive of October 14, 1976, subsequent to the public sales of these defendants’ homes. The newer directive elaborates upon the assignment procedure. See HM Mortgagee Letter 76-9, Acceptance of Assignment of Home Mortgages in Default (No N-76-653, May 17, 1976). The proper issue in Landlord-Tenant Court is right to possession and the few Michigan cases on point support the position that validity of foreclosure is to be considered. In Gage v Sanborn, 106 Mich 269, 279; 64 NW 32 (1895), this Court held: "The questions to be tried before the commissioner under this statute [for summary proceedings] in a foreclosure case are: (1) The fact of the mortgage sale and its validity; (2) the holding over after expiration of the period of redemption. If these questions cannot be tried by the commissioner the statute is farcical, as jurisdiction would always be lost as soon as a plausible claim of invalidity of the sale should be raised. Hence a mortgagor is permitted to question the validity of the sale in this proceeding * * * .” (Emphasis added.) The language of the statute in Gage is very similar to RJA § 5714(l)(e) quoted in part in footnote 6, infra. See also Reid v Rylander, 270 Mich 263, 267; 258 NW 630 (1935) ("We again hold that validity of the [foreclosure] sale may be tested in a summary proceeding based thereon, insofar as invalidity thereof appears in the procedure * * * ”). See, e.g., Guardian Depositors Corp v Keller, 286 Mich 403, 409; 282 NW 194 (1938). This is not to say that noncompliance with HUD rules would necessarily be a sufficient basis for a finding of invalid foreclosure in this state. This issue has not yet received appellate review in Michigan. The statute reads in part relevant to these proceedings: "(1) The person entitled to any premises may recover possession thereof by summary proceedings in the following cases: "(e) When a person continues in possession of any premises sold by virtue of any mortgage or execution, after the time limited by law for redemption of the premises.” Although there is no specific mention of affirmative defense within this statute, appellants assert part (e) should properly be read as follows: "(e) When a person continues in possession of any premises [validly] sold by virtue of any mortgage or execution * * * ”. Appeal is useless to these defendants without a stay because all incentive to appeal would be gone if they were forced to vacate their homes. During oral arguments in the instant case, defendants’ attorney was questioned about why bonds were not available to these women, both of whom were employed at the time. The attorney stated that in his experience, "[sjurety companies will not insure bonds for people coming out of summary proceedings on appeal”. He explained that generally the defendants represented by the Landlord-Tenant Clinic, of which he is director, have no assets and that these defendants do not even own automobiles. The issue in Kennedy was whether the sureties on an appeal bond were liable for anything beyond the costs of the appeal. Because appellants were apparently not asked to comply with the "conditions” aspect of the court rule, the propriety of requiring, as a prerequisite to appeal bond, a promise that appellants will pay a prior sum of money which was not requested in plaintiffs suit (this suit under MCL 600.5714[l][e]; MSA 27A.5714[l][e], is solely for possession) and for which there is, therefore, no judgment against appellants, is not before this Court. We again note the limitations set forth in Kennedy that the appeal bond is "an indemnity * * * against further trouble’’. (Emphasis added.) The amended court rule, GCR 1963, 701.8, effective July 25, 1977, states: "Stay of Proceedings "(a) Civil Cases. "(2) Unless a bond is waived under GCR 1963, 120 or the appellant is exempted by law from filing a bond, the appellant shall file a bond with the claim of appeal, claim of cross appeal, or order granting leave to appeal. The appeal bond must: "(A) be at least $200, and "(i) except for an appeal from probate court, if the appeal is by a person against whom a money judgment has been entered, it must be not less than one and one-quarter times the amount of the judgment; or "(ii) if the appeal is from a judgment for possession of land, it must be in the amount and on the conditions provided by rule; "(B) recite the judgment so as to exhibit the names of the parties and the judge, the character in which the parties prosecuted or defended before the trial court, and the amount recovered; "(C) contain a condition that "(i) the appellant will diligently prosecute his appeal to a decision, and if a judgment is rendered against him, he will pay the amount of the judgment, including costs and interest; "(ii) if his appeal is discontinued or dismissed, he will pay the amount of the judgment, if any, rendered against him in the trial court, including costs and interest; "(iü) in a case involving the possession of land, he will pay damages from the time of forcible entry, the detainer, the notice to quit, or the demand for possession; and "(iv) he will perform any other act expressly named in the statute authorizing appeal; and "(D) be executed by the appellant with one or more sufficient sureties as required by GCR 1963, 763.” (Emphasis added.) As is apparent, (A), supra, is the portion dealing with the "amount” of the bond. Part (C), supra, deals with conditions or promises and can only logically be interpreted in the same manner as its precedessor.	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Fitzgerald, J. These cases, bearing the identical question for decision, were consolidated for opinion. The Rntkowsld case, having been previously dismissed for procedural reasons, was reinstated and will not be dealt with in depth save for the ultimate consideration of the question. Kenneth Arnett was an employee of J. S. Fred-man Construction Company and was injured during the course of his employment at a General Motors plant. Liberty Mutual Insurance Company was the workmen’s compensation insurance carrier for the Fredman Construction Company and paid medical expenses and workmen’s compensation benefits to and on behalf of the injured employee Kenneth Arnett. Thereafter, Kenneth Arnett and Mae Ellen Arnett began third-party litigation in Wayne County against General Motors Corporation and Liberty Mutual Insurance Company intervened. Before judgment, plaintiffs Arnett compromised their claim against the defendant. Intervening plaintiff then demanded full reimbursement out of the recovery obtained by plaintiffs. Intervening plaintiff then made a motion for summary judgment against plaintiffs Arnett and defendant General Motors Corporation, asserting that Liberty Mutual Insurance Company had the right to be reimbursed in full out of the recovery obtained by reason of the third-party settlement. The trial court denied the motion. Thereupon, the intervening plaintiff refused to proceed and the case was dismissed. This appeal followed. The Rutkowski case, on substantially similar facts, was begun in Oakland County and resulted in a decision directly opposite from Arnett. The Oakland trial court held that Liberty Mutual had a first right to monies paid by defendant. Appeal followed from this decision. The single issue in these eases is whether the intervening plaintiff may enforce its claim to recover workmen’s compensation benefits paid to the injured employee against the settlement made by the plaintiff and defendant. The question presented calls for determination of legislative intent as expressed in MCLA § 413.15 (Stat Ann 1968 Eev § 17.189), the pertinent part being the first five paragraphs: “Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence such action within 1 year after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by registered mail at their last known address, the workmen’s compensation commission, the injured employee, or in the event of his death, his known dependents, or personal representative or his known next of kin, his employer and the workmen’s compensation insurance carrier. Any party in interest shall have a right to join in said suit. “Prior to the entry of judgment, either the employer or his insurance carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor. “Such settlement and release by the employee shall not be a bar to action by the employer or its compensation insurance carrier to proceed against said third party for any interest or claim it might have. “In the event the injured employee or his dependents or personal representative shall settle their claim for injury or death, or commence proceeding thereof against the third party before the payment of workmen’s compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided. “In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable under the workmen’s compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.” On two recent occasions, the Supreme Court interpreted the foregoing statutory provision. Gamble v. American Asbestos Products Company (1968), 381 Mich 105, 112; and Transamerican Freight Lines, Inc. v. Quimby (1968), 381 Mich 149, 160. In Gamble, the court held: “The statute says the employee may sue, settle with, and release the third party before judgment. The statute also says that any moneys so recovered shall be applied as therein provided, and thereafter provides that any recovery against the third party shall first reimburse the employer and its insurance carrier. We can see no lawful alternative to compliance with the express language of the statute by affirming, as we do, the decisions below.” In Transamerican, the court held: “The statutory provision allows no alternative other than approving the trial court’s order granting summary judgment in favor of plaintiff against defendant Clayton L. Quimby.” The language employed by the Supreme Court is clear. The party that paid the benefit is entitled to reimbursement from any recovery against the third party. Whether the party who paid the workmen’s compensation benefits intervened is immaterial. This Court regards Gamble, supra, and Transamerican, supra, as controlling the case at bar. Therefore, the intervening plaintiff, Liberty Mutual Insurance Company, may enforce its claim to recover workmen’s compensation benefits paid to an injured employee against the settlement made by the plaintiff and the defendant. The result of the Wayne County circuit court is reversed with costs to appellant and the Oakland County circuit court is affirmed with costs to appellee. All concurred.	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McGregor, J. This being a motion to dismiss, we take the facts pleaded in the complaint as true and set them forth basically as stated by plaintiffs. Plaintiff Karen Rose was involved in a head-on collision while in a car driven by Boris Gorski, in January, 1964. The accident occurred while both vehicles were travelling on Highway US-24. Plaintiffs filed a complaint against defendant, alleging negligence on his part in his position and capacity as state highway commissioner and by him personally. Defendant moved for summary judgment for failure of plaintiff to state a claim upon which relief can be granted. The motion was denied by the circuit judge, and from this defendant appeals. This action is predicated on two counts. The substance of the first alleges that “* * * John C. Mackie, a State Highway Commissioner, had the administrative duty and responsibility under the general highway law, Michigan Statutes Annotated, to 'oversee the art of building, improving and repairing’ so that the said Telegraph Road [US-24] would be reasonably safe for traffic by the public and more particularly the said Boris Gorski and his passenger, Karen Rose.” They continue “* # * John C. Mackie negligently failed to fulfill his administrative duty and responsibility in the premises by al lowing said road to remain in an unsafe condition after due notice to his agents and servants that such unsafe condition existed.” In another part of the complaint they state: “That the proximate cause of the accident was the unsafe condition of the said highway due to the fact that just immediately prior to the point of the accident, said highway suddenly narrowed to a two-lane highway from a three-lane highway without sufficient notice to the users of the said highway and particularly the said [complainant] * * * ” The defendant responds that since the state is immune from liability for such negligence, the defendant shares that immunity. In the alternative, the defendant asserts that, even if defendant is not immune, the complaint does not state a cause of action in negligence. The substance of the second count is that the highway was constructed in a negligent manner and “* * * the said John C. Mackie knowingly, wantonly, and wilfully failed and neglected to make or cause any change to be made in the design and construction of the said highway, notwithstanding that he, his servants, and agents, had on divers occasions been apprised of the menace to life and limb resulting from said hazardous design and construction, and of the need to change and remedy the same.” Defendant, by way of defense, says that the second count fails to state a claim on which relief can he granted, because defendant’s duty (if any) to redesign and reconstruct highway US-24 at the point of the accident was owed to the public, not to the plaintiffs. In the first count, the plaintiffs readily admit to the fact that they do not seek to hold the state liable. Although the state removed much of the immunity it formerly had in this area, by legislative enactment [MCLA § 691.1401 et seq. (Stat Ann 1969 Rev § 3.996[101] et seq.)], the change was not effective until July 1, 1965. The plaintiffs’ first count does not merit discussion; since the state is immune from liability for negligence, the defendant as highway commissioner is also immune. Longstreet v. County of Mecosta (1924), 228 Mich 542, 551; McDowell v. State Highway Commissioner (1961), 365 Mich 268, 271. The plaintiffs aver in their second count that the defendant is liable for wilful and wanton misconduct in the performance of his duties as state highway commissioner. The plaintiffs contend that John C. Mackie was a public official, charged with the performance of ministerial duties, which duties were owed to Karen Rose, individually, and that, because of defendant’s notice of the serious condition existing on the highway, and his wilful failure and neglect to make or cause any change to be made in the design of said highway, he should be liable to the plaintiffs for the damages they have sustained. We note at the outset that in their complaint, the plaintiffs allege that defendant had “* # * the administrative duty and responsibility under the General Highway Law, Michigan Statutes Annotated, to ‘oversee the art of building, improving and repairing’ * * * .” They do not state from what source they ascribe these duties to the commissioner, or to whom they are owed. The only statutory language approximating the quoted language in the complaint is CL 1948, § 225.1 (Stat Ann 1958 Rev § 9.201): “There is hereby created and established a state highway department, which shall be charged with the giving of instruction in the art of building, improving and repairing public wagon roads * * * .” The plaintiffs cite the cases of Raynsford, v. Phelps (1880), 43 Mich 342, and People, for use of Lapeer County Bank v. O’Connell (1921), 214 Mich 410, in support of their argument that a direct duty was owed to plaintiffs. In Raynsford. supra, the plaintiff was the mortgage holder of a piece of property taken in satisfaction of a debt. It was the defendant’s duty under the express provisions of the statute to make collection from the proper person. There was property on the land belonging to the party who should have rightfully paid the taxes, but the tax collector, instead of performing his duty, falsely made a return of no-goods (with which to satisfy the debt), whereby the tax became established as a lien upon the land and the land was sold for its satisfaction. The mortgage holder’s interest was closed out and he was forced to redeem from a tax sale. The court therein said: “[A] public officer having ministerial duties to perform, in which a private individual has a special and direct interest, is liable to such individual for any injury sustained by him in consequence of his failure to perform such duties.” (Emphasis supplied.) Raynsford, supra, p 344. The official in Raynsford had invaded the rights of one person and one person’s property. The present situation is much broader in scope, in that the state highway commissioner does not act personally against any single individual in the construction and maintenance of highways. It could in no sense be said that the defendant singled out one individual in respect to whom he violated his official duty. In People, for use of Lapeer County Bank v. O’Connell, supra, the state, on behalf of a savings bank, brought a suit against the sureties of a county official, who had misappropriated the funds of a single entity. Again, we are faced -with a more direct relationship than exists in the instant case. Notwithstanding the fact that defendants in the above-discussed cases were held to be liable to a private individual, the defendant herein has a much broader duty, and one which is to be considered a “public duty.” People of Illinois, for use of Trust Co. of Chicago v. Maryland Casualty Company (CA 7, 1942), 132 F2d 850, held that the duty imposed upon officers of the Illinois department of public health and department of public welfare to provide for health and sanitary facilities at state institutions was a “public duty” and not a “private duty.” (See, also, Massengill v. Yuma County (1969), 104 Ariz 518 (456 P2d 376), for discussion of public and private duty.) There was no private duty owed to the individuals working on the premises of a state institution, and hence no liability of such officers for death or injury to such laborers resulting from contaminated waters: “When the state defines by statute the powers and describes the duties of the officers of these departments, it is not creating duties the officers owe to the individuals who may constitute the general public of Illinois; it is merely outlining the state’s assumed public duty.” 132 F2d 852. The plaintiffs’ redress is not against defendant, personally. Reversed and remanded to the trial court, for entry of an order granting defendant’s motions for dismissal. All concurred.	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Fitzgeratjd, P. J. This case is before the Court for purpose of reviewing summary judgment in defendants’ favor. Max Nelson and Rosemary Nelson, plaintiffs, were hog raisers in Isabella County prior to June 25, 1962. The corporate defendants induced the plaintiffs to abandon their traditional hog-raising methods and to adopt a new system, the components of which were developed by defendants. It was alleged that the system was represented to increase hog production while utilizing less space, less labor, less feed and increasing pounds of pork for feed and decreasing hog loss and sanitation problems. Plaintiffs adopted the new system and thereafter the following events transpired: the pigs began to eat each other; the pigs chewed and rooted up the wooden slatted floor and fell into the sewage disposal lagoon and drowned; the pigs tore out the automatic feeding devices and other equipment; the pigs tore down interior gates to a second building; sows crashed the gates off the first building when the piglets were removed; pigs contracted pneumonia from the ventilating system; odor was not cleared from the buildings causing more illness; the sanitation lagoon gave off gases which sickened the residents of a nearby village; villagers threatened plaintiffs and their business with extermination and plaintiffs lost their reputation as hog raisers. Plaintiffs informed defendants that things had gone awry and were allegedly told to continue the operation of the hog farm and they would repair or redesign the system so that it would work. Apparently no corrections or modifications were made on the system and plaintiffs were forced to abandon their hog-raising operations. Aii action was commenced on June 24,1968, whereupon defendants moved for summary judgment, alleging that the action was barred by the statute of limitations. The trial court granted the motion which was based primarily on Citizens Casualty Company of New York, New York v. Aeroquip Corporation (1968), 10 Mich App 244, which held that if an action is primarily one to recover damages for an injury to property, the three-year statute is controlling, even though the duty allegedly breached had its origins in contract. In its opinion, the trial court explained: “In the court’s opinion the origin of liability is not the important thing in deciding what portion of the statute is controlling. The court is of the opinion that the character of the law is the important thing to consider and the action is essentially one to recover damages for injury to property, the three year statute is applicable, even though the legal duty which is alleged to have been breached had origin in contract.” The sole issue concerns an error charged to the trial court in its application of the three-year statute of limitations governing actions to recover damages for injuries to person or property. Plaintiffs argue the existence of a contract whereby defendants obtained a monetary consideration in return for an integrated system for the production of swine which was to provide certain commercial advantages. They contend that since the action was essentially in contract then the six-year statute of limitations for breach of contract is applicable and controlling. Defendants contend that the present cause of action is not governed by contract, but rather by the statute covering damage to persons or property. A complete review of the record in the instant case disclosed considerable damage to plaintiffs’ property. It appears that Fries v. Holland Hitch Company (1968), 12 Mich App 178, is directly applicable and controlling. In its opinion, the Fries court stated at pp 184, 185: “We are compelled by the decisions of the Supreme Court to look to the real nature of the wrong-on which the suit is based. Even though the wrong arose by virtue of some implied agreement between the parties, unless that wrong constitutes a breach of some particular provision of that agreement, actions for injury to person or property must be brought within 3 years. Coates v. Milner Hotels, Inc., (1945) 311 Mich 233; Baatz v. Smith (1960), 361 Mich 68, both of which are discussed by Judge Kavanagh in State Mutual Cyclone Insurance Company, supra, and further elaboration here is unnecessary.” While plaintiffs claim damages for breach of express warranties of contract, the record discloses only a sales slip indicating price and items purchased. No doubt the wrong of which the parties complain arose through some implied agreement of the parties, but the fact remains that this Court, as was the trial court, is compelled to look beyond this and into the very nature of the wrong itself. Absent any breach of a specific contractual provision, this case is governed by the statutory provisions applicable to injuries to person or property. The instant case stands in contrast to Schenburn v. Lehner Associates, Inc. (1970), 22 Mich App 534, in that the interpretation of Fries there delineated is not applicable here. In Schenburn, no injury to person or property was claimed. A specific contract was pleaded, in opposition to the bare sales slip before us. The case at bar and Schenburn are distinguishable on their facts. Granting of the summary judgment was proper under the pleadings and existing statutory and case law. Affirmed. Costs to appellees. All concurred. MCLA § 600.5805(7) (Stat Ann 1962 Rev § 27A.5805(7)). MOT,A § 600.5807(8) (Stat Aim 1962 Rev § 27A.5807(8) ). State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1968), 381 Mich 318.	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Williams, J. Introduction The issue presented to us in this case is whether an Act 312 arbitration panel had the authority to compel inclusion of a layoff clause in a collective-bargaining agreement between Center Line police officers and the City of Center Line. The layoff clause at issue provides: "The word 'layoff means a reduction in the working force due to a decrease of work or general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments.” The constitutionality of Act 312 was upheld in Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980), and, thus, we do not review this issue here. The initial decision to lay off is not a mandatory subject of bargaining and, therefore, beyond the scope of the panel’s authority. To hold otherwise would raise serious questions regarding political accountability for major policy decisions. The effect of that decision is, on the other hand, a mandatory subject. Therefore, bargaining to that extent may be compelled. I. Facts The City of Center Line and Local 1277, Metropolitan Council No. 23, AFSCME, AFL-CIO (hereinafter the union), the duly recognized bargaining agent for police officers involved in the instant case, began collective-bargaining negotiations in order to formulate a new contract in January, 1976. The negotiations proved unsuccessful, and on May 26, 1976, the union invoked Act 312 compulsory arbitration. MCL 423.231 et seq.; MSA 17.455(31) et seq. On June 14, 1976, the city notified three of the eight patrolmen employed that on July 8 they were to be laid off. The union then obtained an order from the Macomb Circuit Court, Judge Frank Jeanette, which in essence referred the layoff issue to Act 312 arbitration and restrained the layoffs pending a decision by the arbitration panel. The arbitration panel issued an interim opinion on August 12, 1976, which determined that the layoffs as well as the withholding of shift differential allowances and clothing allowances pending a final decision by the Act 312 panel were improper and prohibited. On September 7, 1976, Judge Jean ette issued a permanent injunction granting the relief awarded by the arbitration panel, including an injunction against the layoffs. The city appealed the judgment to the Court of Appeals, which affirmed on September 8, 1977. Metropolitan Council No 23, Local 1277, AFSCME, AFL-CIO v Center Line, 78 Mich App 281; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977). This decision is not the subject of our review. The Act 312 arbitration continued as to the major issues, and on February 25, 1977, the opinion of the panel was issued. The opinion included the provision with regard to layoffs at issue in the instant case which states: "The word 'layoff means a reduction in the working force due to a decrease of work or general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments.” The union filed a motion to confirm the Act 312 award, and on January 27, 1978, the circuit court ordered summary judgment for the union and enforced the award. The Court of Appeals, on July 11, 1979, in a per curiam decision, affirmed the circuit court, thus upholding the arbitration award. Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v Center Line, 91 Mich App 337; 283 NW2d 741 (1979). We held the instant case in abeyance pending a decision in Metropolitan Council No 23, AFSCME v Oakland County Prosecutor, 409 Mich 299; 294 NW2d 578 (1980), as it seemed that it might be decisive of the issues presented in the instant case. On December 19, 1980, after the decision in Oakland County Prosecutor was issued, we granted leave to appeal and requested that the parties "include among the issues to be briefed: whether the arbitration provision respecting layoffs was within the authority of the arbitration panel”. 410 Mich 868 (1980). II. Constitutionality of Act 312 Appellant attempts to raise the recurring issue of the constitutionality of Act 312, MCL 423.231 et seq.; MSA 17.455(31) et seq. The constitutionality of the compulsory arbitration statute was thoroughly examined in Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980). This Court held that Act 312 was constitutional. We further held that the act as amended provides standards as reasonably precise as the subject matter requires or permits and that there is adequate political accountability to withstand a constitutional attack. 408 Mich 480, 505. Therefore, there is no need for us to review this issue any further. Act 312 is clearly constitutional, and as such it is applicable in this case. III. Authority of the Act 312 Arbitration Panel A The real substantive issue to be addressed in this case is whether the Act 312 compulsory arbitration panel had the authority to order the inclusion of a layoff provision in the collective-bargaining agreement between the city and the union. The layoff provision at issue in the instant case provides: "The word 'layoff means a reduction in the working force due to a decrease of work or general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments(Emphasis added.) The arbitration panel rejected both parties’ proposals with regard to layoffs. The union’s offer was to continue the layoff language as provided in the previous collective-bargaining agreement. The prior contract stated: "(a) The word 'layoff means a reduction in the working force due to a decrease of work. "(b) In all cases of layoff the principle of straight seniority by department shall be observed and length of service shall govern. "(c) The employer will, whenever possible, give at least seven (7) days notice prior to layoff to the employees affected together with a list of the names of said employees to the union.” The city, on the other hand, proposed an offer of settlement that would eliminate the definition of layoff included in the prior contract and have nothing in the contract restricting the layoff decision. The ultimate language adopted was developed by the arbitration panel itself. The rationale for including such a clause with its compromise language was supposedly to protect the police officers from retaliatory layoffs due to the union’s lack of cooperation in fiscal matters. The Court of Appeals noted the reason given for the inclusion of this clause and stated that: "[w]e do not perceive the language as restricting the basic legislative choices of the city in providing municipal services, and we conclude that the award was within the power of the arbitration panel”. Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v Center Line, 91 Mich App 337, 342; 283 NW2d 741 (1979). In fact, the Court of Appeals found that, given the previous contract between these parties, the clause actually expanded management rights. The layoff clause in the prior agreement was interpreted to totally prohibit layoffs solely for economic reasons, while the new clause merely stated that layoffs had to be made in conjunction with layoffs in other departments. Id, In deciding whether or not the Act 312 arbitration panel had the authority to order the inclusion of the layoff clause, it is necessary first to analyze Act 312 itself. As stated in MCL 423.231; MSA 17.455(31), the act intended "to afford an alternate, expeditious, effective and binding procedure for the resolution of [interest] disputes”. Compulsory arbitration in police and fire disputes was seen as a necessary tradeoff for the prohibition against striking. The legislative intent of Act 312 has been discussed on numerous occasions, see Detroit v Detroit Police Officers Ass’n, supra, and Metropolitan Council No 23, AFSCME v Oakland County Prosecutor, 409 Mich 299; 294 NW2d 578 (1980), and was succinctly summarized by Justice Coleman in Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229, 278-279; 231 NW2d 226 (1975). She stated: "PERA procedurally requires the parties to meet at the bargaining table and confer in good faith with an open mind and a sincere desire to reach an agreement. It does not mandate agreement. If the parties fail to agree on one or more mandatory subjects, an 'impasse’ situation is reached and the employer may take unilateral action on an issue consistent with its final offer to the employees’ representative. The duty to bargain is then suspended until there is a change in the surrounding conditions or circumstances. "In the private sector 'impasse’ often results in a strike. The employees refuse to accept the unilateral conditions imposed by the employer and withhold their services as a bargaining weapon. In the public sector strikes are prohibited but nevertheless occur. If the public employees do strike, the public employer may resort to the courts in order to return the labor situation to the status quo. By the time that court relief is obtained, however, the public may well have been left for a long period without the services and protection of the striking employees. "When policemen engage in a strike, the community becomes immediately endangered by the withdrawal of their services. Likewise, our case law has often focused on the fact that fire fighters have a distinct and crucial employment relationship with a public employer. "The Legislature, with knowledge of the vital character of police and fire services and with reference to the specific recommendations of the Governor’s Advisory Committee on Public Employee Relations (February, 1967) moved to foreclose strikes to police officers and fire fighters by enacting 1969 PA 312.” (Footnotes omitted.) The manifest intent of Act 312 is clear. The exact scope of the arbitration panel’s authority, on the other hand, is not so easily discerned from the words or intent of the act. While Act 312 does not specifically delineate the scope of the arbitration panel’s authority, it can be inferred from an analysis which considers the public employee relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and Act 312 together. As stated in § 14, Act 312 was clearly intended to supplement PERA. MCL 423.244; MSA 17.455(44). Council No 23 v Oakland County Prosecutor, supra, 409 Mich 320; Alpena v Alpena Fire Fighters Ass’n, 56 Mich App 568, 575; 224 NW2d 672 (1974), overruled in part, Detroit v DPOA, 408 Mich 483, fn 65. Under § 15 of PERA, to bargain collectively "is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment”. (Emphasis added.) MCL 423.215; MSA 17.455(15). This language is identical to that of § 8(d) of the National Labor Relations Act (NLRA), 29 USC 158(d), and, thus, federal precedents are helpful in exploring the issues at hand. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 53; 214 NW2d 803 (1974). Those issues that fall into the category of "wages, hours and other terms and conditions of employment” are deemed to be mandatory subjects of bargaining. 391 Mich 54-57. In contrast, permissive subjects of bargaining are those subjects that fall outside the scope of those designated as mandatory subjects. The parties are not required to bargain over them, but they may do so voluntarily. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 679-681; 246 NW2d 831 (1976). A third category of bargaining subjects is illegal subjects. Illegal subjects will not be enforced even if the parties agree to bargain over such issues. In general, Michigan has adopted the federal courts’ approach as to what constitutes a mandatory subject of bargaining and thus has used the phrase "other terms and conditions of employment”. See Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 277; 273 NW2d 21 (1978), and Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 27; 232 NW2d 278 (1975). The distinction between a mandatory and a permissive subject of bargaining is a very significant one. In the private sector, parties are required to bargain in good faith regarding mandatory subjects of bargaining. Also, a party may insist to impasse on such a subject and resort to economic weapons in order to achieve its demand. When a permissive subject is involved, however, neither party is obligated to discuss the subject, nor can a party insist to impasse on that subject. NLRB v Wooster Division of Borg-Warner Corp, 356 US 342, 349; 78 S Ct 718; 2 L Ed 2d 823 (1958). In the public sector, regardless of the subject nature, the parties are prohibited from striking. MCL 423.202; MSA 17.455(2). Nonetheless, the distinction between mandatory and permissive subjects plays a vital role in the bargaining dynamics of the public sector. It is only with respect to mandatory subjects that there is a duty to bargain under § 15 of PERA. MCL 423.215; MSA 17.455(15). In spite of the differences between the public and private sector with regard to economic weapons, it has been held in numerous Michigan decisions that federal precedent in distinguishing between mandatory and permissive subjects is relevant and persuasive. Central Michigan University, supra; Pontiac Police Officers Ass’n, supra; Rockwell v Crestwood School Dist Board of Education, 393 Mich 616, 636; 227 NW2d 736 (1975); Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54; 214 NW2d 803 (1974). Therefore, it is useful to look to federal law as well as Michigan law for guidance to determine whether the layoff provision at issue in the instant case is a mandatory subject of bargaining. The distinction drawn between mandatory and permissive subjects of bargaining is significant in determining the scope of the Act 312 arbitration panel’s authority. Given the fact that Act 312 complements PERA and that under § 15 of PERA the duty to bargain only extends to mandatory subjects, we conclude that the arbitration panel can only compel agreement as to mandatory subjects. It would be inconsistent to conclude that the arbitration panel can issue an award on a permissive subject when the parties do not even have a duty to bargain over such a subject. To hold otherwise would grant the Act 312 arbitration panel a free hand to compel agreement on any matters, even those beyond “wages, hours and other terms and conditions of employment”. It is clear that the Legislature, while interested in foreclosing strikes in police and fire departments and providing an "alternate, expeditious, effective and binding procedure for the resolution of disputes” did not intend for the arbitration panel to have unbridled authority. B The layoff clause at issue in this case is not easily labeled a mandatory or permissive subject of bargaining. The case law in this area varies substantially, given different fact situations and different treatment by various courts. Nonetheless, an analysis of the case law and its application to this layoff clause leads us to conclude that the layoff provision in this particular case is not a mandatory subject of bargaining. Therefore, it was beyond the scope of authority of the Act 312 arbitration panel to order the parties to include such a clause in their agreement. Several United States Supreme Court cases have discussed mandatory subjects of bargaining in the private sector. In Fibreboard Paper Products Corp v NLRB, 379 US 203; 85 S Ct 398; 13 L Ed 2d 233 (1964), the Supreme Court held that, based on the particular facts before it, the "contracting out” of work previously performed by union members was a mandatory subject of bargaining. The decision was definitely limited to the facts of the particular case before the Court. It was emphasized by the concurrence that "[t]he Court most assuredly does not decide that every managerial decision which necessarily terminates an individual’s employment is subject to the duty to bargain. Nor does the Court decide that subcontracting decisions are as a general matter subject to that duty”. 379 US 218 (Stewart, J., concurring). The Court went out of its way to limit its holding and emphasized that its decision would not significantly abridge the employer’s freedom to manage the business as the mere replacement of employees by independent contractors was involved. There would not be any requirement of material alteration in the company’s basic operation nor any additional capital investment. In the private sector, then, Fibreboard is a case that discussed the contracting issue and job security, but it did little to illuminate a clear path for future decisions as it was strictly limited to the facts at hand. A very recent United States Supreme Court case dealt with a similar issue in the private sector. In First National Maintenance Corp v NLRB, 452 US 666, 686; 101 S Ct 2573; 69 L Ed 2d 318 (1981), the issue presented was whether an employer must bargain over its decision to close a part of its maintenance service business under §§ 8(d) and 8(a)(5) of the NLRA. The Court held that the decision itself is not a mandatory subject of bargaining included within the phrase "terms and conditions of employment”. The Court concluded that "the harm likely to be done to an employer’s need to operate freely in deciding whether to shut down part of its business purely for economic .reasons outweighs the incremental benefit that might be gained through the union’s participation in making the decision”. Once again the Court attempted to limit its holding by noting the specific facts of the case that led to this result. There was no intention of the employer to replace the discharged employees with other employees or continue the operation elsewhere. The dispute arose because the management fee paid by Greenpark Care Center was reduced and caused the employer to lose money on that service contract. Also, there was no claim of anti-union animus, and the bargaining representative was not selected or certified until after the economic difficulties had ensued. Thus, this case was seen as factually distinguishable from Fibreboard. The Court concluded by stating that "[t]he decision to halt work at this specific location represented a significant change in petitioner’s operations, a change not unlike opening a new line of business or going out of business entirely”. 452 US 688; 101 S Ct 2585; 69 L Ed 2d 337. While the subject at issue in the instant case deals with layoffs, the discussion in these cases regarding subcontracting is relevant. It can be argued that the instant case is more closely aligned with First National Maintenance Corp than Fibreboard as the police officers were not going to be replaced and the decision to lay off employees is similar to the closing down of part of a business. As the city stated in its brief, it must be allowed to make decisions regarding the layoffs as it may be best for the people of Center Line at some point to abolish the independent police force altogether. Such a decision is very similar to the closing of a business, which has been held in some cases not to be a mandatory subject in the private sector. Of course, it must be kept in mind that these cases were limited to the facts before the Court. The National Labor Relations Board and lower federal courts have also struggled with the issue of whether layoffs or subcontracting are mandatory subjects of bargaining. The National Labor Relations Board held in United States Gypsum Co, 94 NLRB 112, 114-115 (1951), that the union’s proposal that layoffs should be made according to seniority was a condition of employment and, thus, bargainable. This opinion, however, was amended, and due to representation problems the unlawful refusal to bargain charge was dismissed. 97 NLRB 889 (1951), modified 206 F2d 410 (CA 5, 1953), cert den 347 US 912 (1954). Application of the Fibreboard analysis has not been an easy task for the NLRB or the courts. In NLRB v Adams Dairy, Inc, 350 F2d 108 (CA 8, 1965), cert den 382 US 1011 (1966), the court reversed the board’s decision and held that the decision to discharge driver-salespersons and use independent contractors for product distribution was not a mandatory subject of bargaining. The court’s rationale was that the change was one affecting the entire operation and capital structure and it would significantly abridge the employer’s freedom to manage the business if bargaining were mandated. 350 F2d 111. Thus, Fibreboard would not require bargaining on such a decision. In Ozark Trailers, Inc, 161 NLRB 561 (1966), the board held that a company was obligated to bargain over the decision to close a plant. The board emphasized the importance that such a decision had for the worker. A few years later, however, the board retreated somewhat from the rationale in Ozark and held that there was no obligation to bargain over an employer’s decision to terminate the manufacturing portion of its business. Summit Tooling Co, 195 NLRB 479 (1972). The board reaffirmed the employer’s duty to bargain over the effects of a closing. Ozark, however, was revitalized in Royal Typewriter Co, 209 NLRB 1006 (1974), where the board held that the employer’s decision to close a plant as well as the effects of the decision were mandatory subjects of bargaining. Several judicial decisions have held layoffs in the private sector to be mandatory subjects of bargaining. NLRB v Exchange Parts Co, 339 F2d 829, 830-831 (CA 5, 1965); NLRB v Frontier Homes Corp, 371 F2d 974, 979-980 (CA 8, 1967). From a brief sampling of the case law in this area, it is apparent that whether or not a particular issue is a mandatory subject of bargaining in the private sector depends heavily on the particular facts, as well as the tribunal to which the case is presented. There is not a set guideline or standard to be used in every case. The issue of what constitutes a bargainable subject in the public sector has also been discussed by many commentators and courts. "Perhaps the single greatest, and almost universally recognized, limitation on the scope of bargaining or negotiation by state public employees is the concept of managerial prerogative as it has developed in the public sector. In essence, the concept creates a dichotomy between 'bargainable’ issues, that is, those issues which affect conditions of employment, and issues of 'policy’ which are exclusively reserved to government discretion and cannot be made mandatory subjects of bargaining.” Anno: Bargainable or Negotiable Issues in State Public Employment Relations, 84 ALR3d 242, 255-256. As stated earlier, the layoff provision provided that layoffs of police officers for lack of funds could only be made in conjunction with layoffs and cutbacks in other departments. We interpret this clause as one that is within the scope of management prerogative. The clause unduly restricts the city in its ability to make decisions regarding the size and scope of municipal services. As the city argued in both oral argument and its brief, the city no longer would be able to base its decision on factors such as need, available revenues, or public interest. The decision regarding layoffs could only be based on the level of services in other departments if the layoff clause was to be upheld. This severely restricts the city in its ability to function effectively and poses serious questions with regard to political accountability for such decisions. The union, on the other hand, would like us to believe that the clause is a mild prohibition and does little to restrict the city’s decision-making process. We do not agree. The clause is a mild restriction, but it speaks to the very essence of the decision. The decision to lay off police officers can only be made in conjunction with other departments according to this clause. While we are aware of the union’s interest in the job security of its members and the perceived need to protect police officers from retaliatory layoffs in this case, the clause awarded was beyond the permissible scope of the Act 312 arbitration panel’s authority. To so restrict the policy decisions of the city is beyond the legislative words and intent. That is not to say that the union has no interest in these issues. The retaliatory layoff issue can most assuredly be dealt with in a variety of ways. The use of compulsory arbitration, however, to insure no retaliatory layoffs is not justified. Also, while the initial decision to lay off is not a mandatory subject of bargaining, and therefore cannot be compelled in an arbitration award, it is clear that there is a duty to bargain over the impact of that decision. Thus, the union has the ability to protect its members after the initial decision has been made. It is one thing to require the city to bargain over the impact of its decision to lay off police officers and quite another to permit them to lay off police officers only if layoffs are made in other departments as well. C While the initial decision to lay off is not a mandatory subject of bargaining, the impact of that decision is an issue for bargaining. Several cases have discussed this fact. In Fire Fighters Union v Vallejo, 12 Cal 3d 608, 621-622; 116 Cal Rptr 507; 526 P2d 971 (1974), the Court held that the decision to lay off, itself, is not a mandatory subject of bargaining, but to the extent that the decision to lay off affects the workload and safety of the remaining workers it is a bargainable and arbitrable issue. The Court also held that with regard to the manning proposal it too was bargainable and subject to arbitration to the extent that it related to workload and safety. The Wisconsin .law in this area is also significant. In Beloit Education Ass’n v Employment Relations Comm, 73 Wis 2d 43, 58-60; 242 NW2d 231 (1976), the Court held that the layoff proposal requiring seniority to be a basis for layoffs is a mandatory subject of bargaining so long as it does not invade the school board’s right to determine curriculum. The test developed by the Wisconsin Supreme Court to distinguish a permissive subject from a mandatory subject of bargaining has been labeled the "primary relation test”. A subject is a mandatory subject of bargaining if the topic "primarily” or "fundamentally” relates to wages, hours and conditions of employment. Presumably, matters of curriculum determination are not subjects of mandatory bargaining. In reviewing a decision by the WERC in another case, the Court held that "economically motivated layoffs of public employees resulting from budgetary restraints is a matter primarily related to the exercise of municipal powers and responsibilities and the integrity of the political processes of municipal government”. City of Brookfield v Wisconsin Employment Relations Comm, 87 Wis 2d 819, 833; 275 NW2d 723 (1979). In BrooMeld, the Court relied on a statute which delineated municipal powers, including layoff decisions, to conclude that a budgetary layoff decision was not a mandatory subject of bargaining. "To decide the issue to be a mandatory subject of bargaining would destroy the equal balance of power that insures the collective bargaining rights of the union and protects the rights of the general public to determine the quality and level of municipal services they consider vital.” The Court noted that the effects of the layoffs were mandatory subjects of bargaining. "A reduction in the total work force caused by the economically motivated layoffs will affect the number of employees assigned to a particular shift and thus alter their individual fire fighting responsibilities. Therefore, there is a primary relation between the impact of the lay off decision and the working conditions of the remaining unit employees.” 87 Wis 2d 833. The Michigan Court of Appeals was faced with the issue of whether a manpower clause was within the scope of the arbitration panel’s authority in Alpena v Alpena Fire Fighters Ass’n, 56 Mich App 568; 224 NW2d 672 (1974). The Court concluded that the manpower award was within the subject matter and jurisdiction of the arbitration panel as it concerned safety, a "condition of employment”. In a similar case, the Rhode Island Supreme Court found that the minimum manpower requirement affected both the workload and safety of the fire fighters and therefore was a mandatory subject of bargaining and arbitrable. Narragansett v International Ass’n of Fire Fighters, AFL-CIO, Local 1589, 119 RI 506; 380 A2d 521 (1977). The clause in this case, however, unlike the ones involved in the cases discussed above, does not involve safety. If the concern were truly over safety, then layoffs in other departments would have no bearing on the issue. The rationale for the wording of the clause was clearly to. prevent retaliatory layoffs. Also, once the decision has been made by the city, the union can bargain about the impact of that decision on workload and safety. In fact, in oral argument, counsel for the city stated that they were not contending that the impact of the decision was not subject to arbitration. Counsel stated that the effect on the safety of the remaining forces, seniority rights, "bump” rights and even the motive behind the layoff decisions are all subjects of collective bargaining. Thus, we do not foreclose bargaining or the issuance of an arbitration award covering such issues. We only hold that the initial decision is a management prerogative and that the arbitration panel cannot mandate a clause on the initial layoff decision. The Act 312 arbitration panel involved in this case analyzed the relevant case law on the subject and concluded that the basis for layoff decisions was a mandatory subject of bargaining. In the next paragraph of its opinion, however, the panel withdrew somewhat from this bold conclusion. The panel stated that good-faith bargaining was required on the issue but that Act 312 arbitration panels "should be very cautious in this area”. The panel expressed its concern about substituting its judgment with regard to layoffs for that of the elected, politically accountable officials. The conclusion was that "without compelling reasons an arbitration panel should not substitute its judgment for that of elected officials in the area of lay offs”. The arbitration panel, in developing the compro mise language, felt that it achieved an equitable balance between the city’s need for flexibility, the employee’s security and the public’s interest. It also assured against the police officers being singled out and subjected to layoffs for retaliatory reasons. The arbitration panel’s analysis seems to be more supportive of a finding that the layoff decision is one within the management prerogative and a policy decision rather than a mandatory subject of bargaining. The statements made regarding caution in substituting the panel’s judgment for that of the city illustrates that this subject is one within the province of the city. We disagree with the arbitration panel’s conclusion that the layoff decision is a mandatory subject of bargaining. The city, thus, cannot be compelled to agree to a clause on the subject — regardless of its compromise language. By applying the policy-impact approach, it is clear that the initial decision to lay off public employees must be left to the public body. There can still be mandatory bargaining over the impact of such a decision, but the initial decision must be left to the politically accountable representatives. Conclusion The Act 312 arbitration panel in this case exceeded its authority with respect to the layoff clause awarded. The clause deprived the city of its ability to make a policy decision, that is, whether to lay off police officers. Such policy decisions are not mandatory subjects of bargaining. The impact of such a layoff decision, however, is subject to bargaining. The panel in this case went beyond compelling an award merely dealing with the effect of such decision, and, thus, the award cannot be enforced. Accordingly, we reverse the decision of the Court of Appeals and hold that the layoff clause shall not be enforced as awarded. No costs, a public question being involved. Fitzgerald, C.J., and Kavanagh, Levin, Coleman, and Ryan, JJ., concurred with Williams, J. The late Justice Blair Moody, Jr., took no part in the decision of this case. The question of last offer arbitration was not raised with respect to this layoff provision. The theory involved is that last offer arbitration applies only to economic issues and that the arbitrator has the power to say what is and is not economic. The issue was designated non-economic. As the question was not raised, we express no opinion. It should be noted that Justice Coleman dissented in Detroit v DPOA, supra, 578, and stated: "The researcher will note that in Dearborn Fire Fighters v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), I wrote to the opposite of the opinion I have now signed. [Footnote omitted.] I must confess to a starry-eyed vision of how the 1969 legislative form of compulsory arbitration should operate — but it has not. More importantly, I am now convinced that it cannot operate constitutionally under the present statute.” For a general discussion of the three categories of bargaining in the private sector, see Bartosic & Hartley, Labor Relations Law in the Private Sector (ALI-ABA, 1977), pp 157-Í65; Gorman, Basic Text on Labor Law Unionization & Collective Bargaining (West Publishing Co, 1976), pp 496-531. With respect to bargaining in the public sector specifically, see Anno: Bargainable or Negotiable Issues in State Public Employment Relations, 84 ALR3d 242. For articles on the scope of bargaining in the public sector, see Sackman, Redeñning the Scope of Bargaining in Public Employment, 19 Boston Col L Rev 155 (1977); Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich L Rev 885 (1973). It should be noted that even if the parties agree to discuss a permissive subject of bargaining it does not thereafter become a mandatory subject. Thus, the fact that the layoff decision may have been a subject of bargaining in past contract negotiations does not make such a subject mandatory for future collective-bargaining agreements. See City of Taunton v Taunton Branch of the Massachusetts Police Ass’n, — Mass App —; 406 NE2d 1298, 1302 (1980). Two New York decisions, for example, have held that job security, while not a mandatory subject of bargaining, is a permissive subject that can be bargained over if the parties voluntarily agree. Burke v Bowen, 40 NY2d 264; 386 NYS2d 654; 353 NE2d 567 (1976); Board of Education of Yonkers City School Dist v Yonkers Federation of Teachers, 40 NY2d 268; 386 NYS2d 657; 353 NE2d 569 (1976). For cases holding that mandatory subjects of bargaining are within the Act 312 arbitration panel’s scope of authority, see Roseville v Local 1614, International Ass’n of Firefighters, AFL-CIO, 53 Mich App 547, 558-559; 220 NW2d 147 (1974), lv den 393 Mich 759 (1974); Local 1518, AFSCME, AFL-CIO, Michigan Council 55 v St Clair County Board of Comm’rs, 43 Mich App 342, 344-345; 204 NW2d 369 (1972). In Fibreboard, the employer informed the union that the decision had been made to "contract out” the maintenance work performed by union members because substantial savings could be realized. Thus, bargaining would be pointless. The employees in the bargaining unit were discharged, and independent contractors were employed to do the work. The union then proceeded to file charges of unfair labor practices against the employer. In Van Buren Public School Dist, supra, 61 Mich App 27, the Court of Appeals was faced with the issue of whether the contracting of school-bus driving previously performed by bargaining unit members was a mandatory subject of bargaining under § 15 of PERA. The Court discussed Fibreboard at length and concluded that the contracting at issue was a mandatory subject of bargaining as it concerned a "term and condition of employment” and to require bargaining of the subject furthered the statute’s primary purpose. The Court of Appeals also stated that § 15 of PERA should be given an even more expansive construction than its NLRB counterpoint considering the strike prohibition for public employees. The Court further limited its holding by noting in a footnote that it expressed no view as to other types of management decisions. Thus, the Court was concerned solely with the facts and circumstances before it and declined to make any decision regarding such issues as plant relocations, sales, other kinds of subcontracting or automation. 452 US 686, fn 22; 101 S Ct 2584; 69 L Ed 2d 335. In First National Maintenance Corp, supra, 452 US 677-678; 101 S Ct 2580; 69 L Ed 2d 330, the Court stated in a footnote that "[tjhere is no doubt that petitioner was under a duty to bargain about the results or effects of its decision to stop the work at Greenpark, or that it violated that duty”. For cases discussing this issue see discussion, infra. The arbitration panel also discussed the mandatory subject issue in its interim opinion and concluded that layoffs were mandatory subjects of bargaining.	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Per Curiam. Defendant was found guilty of the crime of gross indecency with a female person by a jury in the recorder’s court for the city of Detroit. CDS § 750.338b (Stat Ann 1954 Eev § 28.570(2)). On appeal, the only issue is whether defendant’s constitutional right to represent himself was denied. US Const, Am 6; Const 1963, art 1, § 13. The trial court assigned attorney Jesse PEolliday to represent defendant. Mr. Holliday had been defendant’s assigned counsel in another case involving a three-day trial. The defense in both that case and the present one was alibi and involved the same alibi witnesses. Further, defendant pleaded guilty at the other trial to breaking and entering a dwelling place with intent to commit a felony therein. That dwelling place was the same building as the one in which the crime occurred in this case. On the day set for trial and prior to the selection of the jury, defendant indicated to the trial court that he was dissatisfied with his assigned counsel. There followed an extensive colloquy between the court, the defendant, and the assigned counsel regarding this matter. At the conclusion of this discussion, defendant and his assigned counsel went into the detention cell to confer and the case was adjourned until the next day. No dissatisfaction with or objection to assigned counsel was thereafter made by defendant and Mr. Holliday continued to represent defendant throughout the trial of this case. After a careful examination of the record we have concluded that the defendant did not unequivocally request that he be permitted to conduct his own defense and that the trial court did not err in allowing previously assigned counsel to continue to represent the defendant during his trial. Compare United States v. Denno (CA 2, 1965), 348 F2d 12, 15, 16, cert denied, 384 US 1007 (86 S Ct 1950, 16 L Ed 2d 1020); People v. Henley (1969), 382 Mich 143. Affirmed.	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McGregor, J. Defendant was tried without a jury on April 30, 1968, and was convicted of uttering and publishing, MCLA § 750.249 (Stat Ann 1962 Rev § 28.446), and sentenced to serve from 2 to 14 years in prison. On appeal, defendant alleges that an incriminating statement was elicited from him by the arresting officer, in contravention of his Miranda rights. Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694). The statement was admitted into evidence without objection either before or at trial. The facts indicate that an officer was called from the street into the bank. The bank teller, in explaining the circumstances to the officer on the scene, in dicated that the check appeared to be a bad check. The officer asked for and received some identification from the defendant; when the officer inquired whose check it was, the defendant responded that a friend had given it to him and had asked him to cash it for him. Defendant testified at trial that he found the check on a Dexter bus, which testimony conflicted with his original statement to the officer. Essentially, we have a general on-the-scene investigatory questioning by a police officer. There was, at the time of defendant’s admission of possession of the check, no indication of an arrest being made by the officer, nor was the scene physically dominated by this lone officer in the lobby of the bank, nor was the defendant substantially deprived of his freedom of action in any significant way. Miranda proscribes custodial interrogation, or interrogation under a loss of freedom. In People v. Patton (1968), 15 Mich App 198, the Court ruled that Miranda warnings were not required where the arresting officer asked one of the defendants (subsequently arrested for unlawfully driving away an automobile) what he was doing with the truck, and defendant answered that a man at the bar had asked him to pick it up for him. “The trial record discloses testimony of the arresting officer concerning the statement made by Richard Patton as follows: “ ‘Q. What did Mr. Patton say at this time? “ ‘A. When I asked him what he was doing with the truck? “ ‘Q. Yes, sir. “ ‘A. He said that he had met a man at a bar and that the man told him to come down and pick up his truck for him. “ ‘Q. Did he mention which bar ? ‘“A. I don’t believe he did say the bar he was at.’ ” People v. Patton, supra, 200. Such was held to be general, on-the-scene questioning where the defendant was not significantly deprived of his freedom of action, and therefore, Miranda did not apply. We find the questioning herein the same as found in Patton, and therefore, rule that Miranda does not apply. This Court finds that defendant did not object to the use of these statements either prior to or during the trial; the defendant claims he was prejudiced by his failure to object. Defendant directs our attention to the recent holding of the Michigan Court of Appeals in People v. Wilson (1969), 20 Mich App 410, wherein it was held that automatic reversal was required, even though defendant did not object, where the prosecution used defendant’s statements which were elicited in contravention of his Miranda rights. Since the statement herein was not the product of a custodial interrogation or an interrogation under a loss of freedom and, therefore, Miranda does not apply, Wilson, supra, is not applicable. It was not error to admit the statement, and defendant could not be prejudiced by his failure to object. Conviction affirmed. All concurred.	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J. H. Gillis, J. This is a welfare rights appeal. The question presented is one which has in recent years received frequent judicial consideration. At issue is whether the Michigan Department of Social Services acted lawfully in denying welfare assistance to plaintiff Lue Ella Evans and her six children. I Facts On April 4, 1967, plaintiff Evans’ grant under the aid to dependent children (ADC) provisions of the Michigan Social Welfare Act was cancelled by the Department of Social Services on the ground that she had fraudulently obtained a larger assistance grant than that to which she was entitled. Her case was referred to the prosecutor for institution of criminal proceedings. On July 12, 1967, plaintiff reapplied for ADC assistance but her application was denied on the basis of the pending criminal proceedings. Subsequently, on August 24, 1967, plaintiff was convicted in recorder’s court for the city of Detroit of welfare fraud and sentenced to two years probation. The court also ordered plaintiff to make restitution to the Department of Social Services in the amount of $499. On January 17, 1968, a hearing was held before Wayne county welfare authorities on plaintiff’s appeal from the denial of her reapplication for ADC assistance. At the hearing, a memorandum of the Department of Social Services was read into the record in support of the denial of assistance. The memorandum states in part: “In reference to eligibility following violation that results in prosecution, the State Office has recently advised as follows: “* * [/]/ the court prescribes restitution, we have ruled that the client is not eligible for assistance until either such restitution has been made or the court revolees that part of the sentence.’ ” Memorandum No 60-4, Department of Social Services (March 23, 1960). (Emphasis supplied.) Since the plaintiff had not complied with the recorder’s court order of restitution, the hearing referee, apparently relying on Memorandum 60-4, concluded that plaintiff was ineligible to receive ADC assistance. This decision was affirmed by state welfare authorities, and on February 8, 1968, defendant Bernard Houston, Director of the Michigan Department of Social Services, informed plaintiff that “Subsequent court action resulted in a penalty of probation and restitution which is still in effect. For this reason you cannot be found eligible for a grant at this time.” An appeal from the department’s denial of assistance was claimed and timely filed in the Wayne county circuit court. The circuit court granted plaintiff Evans’ motion for summary judgment, GCR 1963, 117.2(3), and reversed the decision of defendant. The trial court held that the department’s cancellation and denial of assistance was improper and ordered retroactive payment of the ADC grant. For reasons which will appear, we affirm. II The ADC Program The ADC program is one of the major categorical public assistance programs established by the Federal government under the Social Security Act of 1935. The program is financed largely by federal funds, on a matching basis, and is administered by the states. In order to participate in the program and take advantage of the substantial federal funds available for distribution to needy children, states are required to submit an ADC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 42 USC §§ 601, 602, 603 and 604. The plan must conform with several requirements of the Social Security Act and with the rules and regulations promulgated thereunder by HEW. 42 USC § 602. For an extended discussion of the history, scope, and the basic purposes of the ADC program, see Reuben K. King v. Sylvester Smith (1968), 392 US 309 (88 S Ct 2128; 20 L Ed 2d 1118). Under the Social Security Act, states are free to set standards of need, as well as to determine the level of benefits by the amount of funds it devotes to the ADO program. See Reuben K. King v. Sylvester Smith, supra, 392 US at 318, 319 (88 S Ct at 2133; 20 L Ed 2d at 1126). However, within the framework of state-determined standards of need, a state must: “[P]rovide * * * that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall he furnished with reasonable promptness to all eligible individuals.” 42 USC § 602(a) (10). (Emphasis supplied.) And see Williams v. P. Dandridge (D Md, 1968), 297 F Supp 450, 454. The category of “eligible individuals” singled out for welfare assistance by ADC is the “dependent child,” who is defined in § 406 of the Act, 42 USC § 606. The aid furnished is to “needy dependent children and the parents or relatives with whom they are living.” 42 USC § 601. Although the needs of the parent or relative with whom the child is living may be considered by the state in determining the amount of aid, 42 USC § 606(b), the primary purpose of ADC assistance is the protection of needy children. “Protection of such children is the paramount goal of AFDC.” Reuben K. King v. Sylvester Smith, supra, 392 US at 325 (88 S Ct at 2137; 20 L Ed 2d at 1130). The state of Michigan, like all other states, participates in the ADC program. By PA 1939, No 280, (MCLA §400.1, et seq., Stat Ann 1968 Rev § 16.401, et seq.), it likewise became the policy of this state to provide protection, welfare, and assistance to dependent children. The Department of Social Services was established to administer programs of both general and categorical assistance, including ADC. Tlie department was charged with developing the requisite ADC plan in order to obtain the Federal moneys available under the Social Security Act. Under the Social Welfare Act, the legislature empowered the department to adopt any rules and regulations necessary to enable the state of Michigan to participate in the distribution of Federal funds. The department was empowered “to do all things reasonable and proper to conform with all Federal requirements pertaining to methods and standards of administration.” Section 56 of the Social Welfare Act establishes various conditions which restrict the category of dependent children entitled to ADC in the state of Michigan. For example, such children must be “deprived of parental support or care by the death, continued absence from the home, or physical or mental incapacity of a parent.” Those entitled to ADC assistance must be under the age of 18, or under 21 and a student regularly attending classes. In general, ADC eligibility in Michigan parallels Federal eligibility standards. And, as in the case under the ADC provisions of the Social Security Act, a fair reading of Section 56 indicates that protection of dependent children is the primary purpose of such assistance in Michigan. Finally, the legislative mandate is clear: If a child is “dependent” within the meaning of § 56 of the Social Welfare Act, “Aid * * * shall be provided * * * .” (Emphasis supplied.) In administering the Social Welfare Act, the department is to be guided by the concept of entitlement. That concept means: “[Objective eligibility safeguards against revocation or loss of benefits, and it means that the individual’s rights, whatever they may be, should be known to him and enforced through law.” Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale LJ 1245, 1256 (1965). In short, the ADC claimant is entitled to have his interest in such assistance considered in accordance with statutory criteria. Ill The Department’s Contentions On appeal, defendant contends that the action of the department in refusing ADC assistance to plain tiff was in accordance with statutory eligibility criteria under the Social Welfare Act. Although the defendant concedes that plaintiff Evans’ children are “dependent” within the meaning of § 56 of the Act, it insists that they are, nevertheless, ineligible for aid by virtue of § 43 of the Social Welfare Act. That section reads: “All assistance granted under this act shall be reconsidered from time to time, or as frequently as may be required by the state department. After further investigation by the county department of social welfare, the amount and manner of giving assistance may be changed, or the assistance may be withdrawn if the state department finds the recipient’s circumstances have changed sufficiently to warrant such action. It shall be within the power of the state department at any time to cancel and revolee assistance for cause, and it may for cause suspend payments for assistance as it may deem proper, subject to appeal and hearing by the recipient as provided for in section 9. The provisions of this section shall be mandatory only with respect to old age assistance, aid to dependent children, aid to the blind, aid to the permanently and totally disabled or any other function financed in whole or in part by federal funds.” MCLA § 400.43 (Stat Ann 1968 Rev § 16.443). (Emphasis supplied.) It is the department’s contention that plaintiff Evans’ failure to comply with the recorder’s court order of restitution constitutes cause for revocation of assistance within the meaning of § 43. We cannot agree. The defendant’s argument, if accepted, necessarily requires the conclusion that the state legislature has committed to the department’s discretion all decisions concerning eligibility for welfare assistance under the Social Welfare Act. Nowhere in the act is there any indication of just what conduct consti tutes “cause” for cancellation of a welfare recipient’s grant. The term is simply not defined. In the absence of any standards by which to judge a termination for cause, conduct which the department alone regards as reprehensible could serve as justification for denying welfare assistance. We do not believe that § 43 has the effect which defendant claims. The history of welfare administration in the United States negates any implication that, by enacting § 43, the Michigan legislature empowered the department to determine what conduct justifies denial of assistance. See Reuben K. King v. Sylvester Smith, supra, 392 US at 320-327 (88 S Ct at 2134-2139; 20 L Ed 2d at 1127-1131). Indeed, had the legislature intended so drastic a result, there is good reason to suppose that it would have made its intent more explicit. That same legislature had no difficulty in making it abundantly clear just what conduct on the part of a recipient justifies refusing aid; and, even then, aid can be refused by the department only under limited circumstances. We think it clear that § 43 empowers the department to withdraw assistance only where, for example, a recipient of ADC no longer meets the objective eligibility criteria established in § 56 of the act. So construed, the power to revoke for cause is limited to cancellation based on ineligibility under the standards set forth in the Social Welfare Act. We reach this conclusion for several reasons. First, various provisions of the Social Welfare Act reflect an intent on the part of the Michigan legislature to guarantee compliance by the state with the provisions of the Social Security Act. The State Department of Social Services was empowered to take all necessary steps to conform with Federal requirements pertaining to state categorical welfare administration. One such requirement regarding state administration of ADC program is that “the state agency will make such reports * * * containing such information, as the Secretary (HEW) may from time to time require * * * 42 USC § 602. In response to this Federal requirement, the legislature specifically required the state department to “make such reports * * * containing such information, as may be required from time to time under the provisions of the social security act * * * .” An additional Federal requirement regarding state ADC plans, one established by ITEW, is that, in order to qualify as an acceptable state plan, the plan must require the agency administering the program to periodically review “a recipient’s circumstances [which] may affect his eligibility or the amount of assistance.” Clearly, the purpose of this requirement is to avoid payment of Federal ADC funds to individuals who, because of changing family status or need, no longer qualify for assistance. See Comment, “Withdrawal of Public Welfare: The Right to a Prior Hearing,” 76 Yale LJ 1234 (1967). It was in response to this Federal requirement that we think the legislature enacted § 43 of the Social Welfare Act, requiring the department to periodically review an ADC recipient’s circumstances in order to reconsider eligibility status. The “circumstances” to be investigated by the department are those eligibility criteria established in § 56 of the Act. Section 43, in our view, authorizes the department to revoke assistance only where a recipient is no longer “dependent” within the meaning of § 56, or is no longer in financial need. We refuse to infer any broader delegation of power. To do so would permit the department under § 43 of the act to revoke assistance for a good reason, a bad reason, or no reason at all. In the absence of objective standards by which to judge a decision to revoke “for cause,” an appeal from such a decision would be meaningless. We do not think that the legislature, when it conferred upon the department the power to revoke for cause, “subject to appeal and hearing by the recipient ” intended that there be a total absence of such standards. On the contrary, standards are provided; they are those contained in § 56. A revocation for cause under § 43 of the act is limited to cancellation based on ineligibility under those standards. This is not to say that the department is powerless under all circumstances to revoke assistance to those otherwise qualified under the act. The legislature has clearly empowered the department to take such action in two limited circumstances. For example, § 61 of the act provides: “Whenever any person receiving aid, relief or assistance is convicted of an offense under this act, or of any other crime or offense and punished by imprisonment for one month or longer, the county board may thereupon direct that all payments for aid, relief or assistance under this act shall cease and shall not be made during the period of such imprisonment.” We think such sections of the act are exclusive. They enumerate the only situations deemed significant enough by the legislature to warrant denial of aid. In the present case, the department concedes that plaintiff’s children are eligible for ADC relief under § 56 of the act. Moreover, those children have done nothing which, under the act, warrants cancellation and refusal of aid to them. Nothing in the act suggests that plaintiff’s failure to make restitution disqualifies her children from aid, and there is no provision of the act from which such legislative intent can be implied. The department’s action in refusing aid adds a disqualification of plaintiff’s children not provided by the act. This the department has no power to do. Consequently, we hold such action invalid on the ground that it imposes an additional condition of eligibility not required by the Social Welfare Act. Cf. Reuben K. King v. Sylvester Smith, supra; Doe v. Shapiro (D Conn, 1969), 302 F Supp 761. The department’s action in refusing ADC assistance was in square conflict with the mandatory provisions of § 56 of the act, requiring that aid be provided to all eligible individuals. Defendant’s other contentions have been considered. We find them without merit. Affirmed. No costs, a public question being involved. All concurred. Compare, Reuben K. King v. Sylvester Smith (1968), 392 US 309 (88 S Ct 2128; 20 L Ed 2d 1118; Shapiro v. Thompson (1969), 394 US 618 (89 S Ct 1322; 22 L Ed 2d 600); Doe v. Shapiro (D Conn, 1969), 302 F Supp 761; Dews v. Henry (D Ariz, 1969), 297 F Supp 587; City of East Orange v. W. McCorkle (1968), 99 NJ Super 36 (238 A2d 489). See generally, Charles A. Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” (1965) 74 Yale LJ 1245. MCLA § 400.56 (Stat Ann 1968 Rev § 16.456). Section 60 of the act, MOLA § 400.60 (Stat Ann 1968 Rev § 16.460), makes it a crime for one to obtain by fraudulent devices a larger amount of assistance than that to which he is entitled, Under the Social Welfare Act, an ADC claimant denied assistance is entitled to a fair hearing contesting the denial. See MCDA § 400,9 (Stat Ann 1908 Rev .§ 16.409). The appeal was taken pursuant to the contested ease provisions of the Administrative Procedure Act, MCLA § 24.108 [Stat Ann 1969 Rev § 3.560(21.8)]. under Title IV of the Social Security Aet, the Federal terminology for what we have ealled the ADC program is “aid to families with dependent children,” (AFDC). See 42 USC § 606(b). Hereafter referred to as “The Social Welfare Act.” MCLA § 400.1 (Stat Ann 1968 Rev § 16.401). MCLA § 400.10 (Stat Ann 1968 Rev §16.410). MCLA § 400.10 (Stat Ann 1968 Rev §16.410). MCLA § 400.56 (Stat Ann 1968 Rev § 16.456). MCLA § 400.56(a) [Stat Ann 1968 Rev § 16.456(a)]. MCLA § 400.56(c) [Stat Ann 1968 Rev § 16.456(e)]. Compare MCLA § 400.56 (Stat Ann 1968 Rev § Í6.456) with 42 ITSC § 606. One noteworthy exception is the requirement that either child or his parent must have resided in Michigan for 1 year preceding application for ADC assistance. See MCLA § 400.56(d) [Stat Ann 1968 Rev § 16.456(d)], In Shapiro v. Thompson, supra, note 1, like residency requirements were held unconstitutional by the United States Supreme Court. MCLA §400.56 (Stat Ann 1968 Rev § 16.456). Seetion 56(e) of the Aet is to the same effect: “The amount of assistance which shall be granted for any dependent child * * * .” MCLA § 400.56(e) (Stat Ann 1968 Bev § 16.456[e]). (Emphasis supplied.) Compare the above sections with 42 USC § 602(a) (10), quoted in text supra. On appeal, defendant contends that the ADC grant is a gratuity, but surely, even if this is so in the sense that it is unearned and the program is an act of compassion by an enlightened government, those charged with administering the program cannot as a matter of whim revoke a benefit. There must be adequate grounds for revocation; they must be valid grounds. Manifestly, the “gratuity” (right/privilege) analogies prove too mueh. See James J. Graham. “Public Assistance: The Eight to Receive; The Obligation to Repay,” 43 NYU LR 451, 467-475; Reich, supra, note 1. We mighl add that elsewhere the department has characterized the welfare claimant's interest in publie assistance as a right. “Application shall be considered a right of any individual who considers himself eligible for assistance for himself or for another, and shall not be denied or limited.” 1954 Administrative Code, Eules So Eegulations of the Michigan. Social Welfare Commission, E 400.1 (1). Eor our ability to judicially notice the published rules and regulations of the department, see MCLA § 24.80 (Stat Ann 1969 Eev § 3.560 [16]). “In a society where a significant portion of the population is dependent on social welfare, decisions about eligibility for benefits are among the most important that a government can make.” Reich, supra, note 1, at 1253. Ror example, §40 of the Act, MCLA § 400.40 (Stat Ann 1968 Rev § 16.440), authorizes the department to cancel assistance upon failure of a recipient to file with the department a statement of financial condition within 30 days after demand for such a report. See the discussion of § 01 of the act, infra. See, for example, the declaration of policy contained in the act’s title. MOLA § 400.10 (Stat Ann 1968 Bev §16.410). And see text accompanying note 10, supra. MCLA §400.10 (Stat Ann 1968 Bey § 16.410). HEW, Handbook of Public Assistance Administration, pt IV, § 2200(d). The inference that § 43 was enacted in response to a Federal requirement under the Social Security Act is supported by the fact that the section was made mandatory only for categorical assistance programs, including ADO, financed in whole or in part by Federal funds. Compare, 1954 Administrative Code, Bules & Begulations of the Michigan Social Welfare Commission, E 400.17: “Eeinvestigation shall be made at least once each year, or more frequently as the probability of change in situation indicates, to determine continuing eligibility and changes in amount of assistance needed.” (Emphasis supplied.) This rule, apparently adopted to implement § 43, makes sense only if “continuing eligibility” is measured by those criteria established under § 56 of the act. See notes 18 and 19, supra, and accompanying text. MOLA §400.61 (Stat Ann 1968 Rev §16.461). Whether the department would be justified in withholding any portion of the ADO grant allocable to plaintiff under the act is a question not presented. The record does not reveal whether plaintiff’s needs were considered in determining the amount of the ADC grant. Moreover, the department has not argued this question either on appeal or at the trial below. Assuming, arguendo, that plaintiff: was the recipient of a portion of the grant, the department may be justified as an unpaid creditor in withholding plaintiff’s portion of the grant until she has repaid, or been credited with, the amount defrauded. This was not, however, the action sought to be justified by the department in this ease. Here, the department contends that it may terminate and permanently refuse assistance payable to plaintiff as trustee for her children to be used for their benefit until the defrauder pays baek the amount unlawfully obtained. Our holding is limited to this latter contention.	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Per Curiam. In August of 1963, petitioner was arrested and charged with kidnapping and sexually assaulting a six-year-old girl. A commission of three psychiatrists was appointed under CLS 1961, § 780.504 (Stat Ann 1954 Rev § 28.967[4]). Petitioner was found to be a criminal sexual psychopath under the statute and was committed to Ionia State Hospital as the result of a hearing under CLS 1961, § 780.505 (Stat Ann 1954 Rev § 28.967[5]) in December of that year. See generally, People v. Holnagel (1963), 371 Mich 347; see also People v. Griffes (1968), 13 Mich App 299. In 1967 petitioner filed a petition for writ of habeas corpus with this court claiming that he was being illegally detained. An order to show cause was granted. Counsel was appointed by the Recorder’s Court for the City of Detroit, and briefs were submitted by the parties. Petitioner does not claim to be cured of his disorder, but claims that he is not being given treatment at the Ionia hospital. He thus contends that he is being illegally detained and should be released so that he might seek treatment elsewhere. The people deny the petitioner’s allegations and assert that petitioner has been uncooperative and has failed to respond to treatment. This court is not the proper forum for determination of these disputed facts. The law is clear that such determination is to be made by the circuit court in the county wherein petitioner is detained. GCR 1963, 712.1[2], In re Kemmerer (1944), 309 Mich 313. For as the Kemmerer court said at p 317: “ [H] e is entitled to proper care such as his condition and the good of society demands. If he is not receiving it * * * , he can always present a petition for habeas corpus preferably to the circuit court [of the county wherein he is detained] where proper and full inquiry can be made into the facts.” The constitutionality of the statute under which petitioner was committed was upheld because it was interpreted as a civil rather than criminal proceeding. People v. Chapman (1942), 301 Mich 584. Although PA 1939, No 165, the so-called criminal sexual psychopath act, has been repealed by PA 1968, No 143, the civil nature of the commitment and detention of persons such as petitioner remains unchanged. Therefore, if petitioner is in fact not receiving treatment, the principle invoked in In re Maddox (1958), 351 Mich 358, would apply. In the Maddox case, the petitioner was a criminal sexual psychopath who was committed under the statute to receive “curative treatment” but found himself in Southern Michigan Prison being treated as an ordinary prisoner. The Maddox court found such incarceration to be an unconstitutional deprivation of liberty. Here, the place of confinement is “an appropriate state institution” within the meaning of the statute under which the petitioner was committed, CLS 1961, § 780.505 (Stat Ann 1954 Rev § 28.967[5]), but this does not diminish the state’s obligation to him. He is entitled to proper care and treatment. In re Kemmerer, supra; In re Maddox, supra. Although §7 of PA 1939, No 165 (CLS 1961, § 780.507 [Stat Ann 1954 Rev § 28.967(7)]) has been repealed by PA 1966, No 267, we find that the right to treatment where detention is upon commitment for a mental disorder and not upon a finding of guilt-on the substantive crime remains inviolate. The other issues which petitioner seeks to raise here with regard to the discharge provisions of PA 1968, No 143 (MOLA § 330.35b [Stat Ann 1969 Rev § 14.825(2)]) (which repealed PA 1939, No 165) are disposed of by an Administrative Order of the Supreme Court issued October 21, 1969, which says: “It appearing upon repeal of PA 1939, No 165, that jurisdiction to hear petitions to test the recovery of persons committed as criminal sexual psychopaths under the provisions of said act remains unresolved, that proceedings in various courts wherein relief has been sought have been dismissed with the result that a situation has continued for several months wherein the proper forum for reviewing the propriety of continued custody of persons committed under the provisions of said law remains in question, that protection of the basic rights of such persons and the uninterrupted administration of justice requires designation of a proper forum for hearing said matters until such time as the legislature shall provide clarification, now therefore, pursuant to the provisions of Constitution 1963, art 6, § 13, and PA 1961, No 236, § 601, the revised judicature act. “It is ordered, that until such time as there is further legislative clarification of jurisdiction of proceedings for testing recovery of persons committed under the provisions of said PA 1939, No 165, as amended, jurisdiction shall continue and proceedings shall he conducted in accordance with the provisions of section 7 of said act, CL 1948, § 780.507, as amended by PA 1952, No 58 (Stat Ann 1954 Rev § 28.967[7]). “This order shall constitute a rule of the Supreme Court within Constitution 1963, art 6, § 13, and shall be effective as of August 1, 1968, the date of effect of the repeal of PA 1939, No 165, as amended.” No 1969-4, 382 Mich xvii. Petitioner’s contention that he is not being given treatment at Ionia State Hospital is remanded to Ionia Circuit Court for hearing. Remanded. See Rouse v. Cameron (1966) 125 App DC 366 (373 F2d 451), and the controversy which it has generated. The Rouse controversy is perhaps most completely explored at a Wayne State University Law School symposium on The Mentally 111 and Implementing the Right to Treatment, which has been published in 86 Chi L Rev 742-801 (1969).	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Per Curiam. Defendant, Barry Davis, and two others were charged with the breaking and entering of a business place with intent to commit a larceny or felony therein pursuant to MCLA § 750.110 (Stat Ann 1968 Cum Supp §28.305). On August 12, 1968, defendant being represented by counsel tendered a plea of guilty to the lesser included offense of attempted breaking and entering with intent to commit larceny under MCLA § 750.92 (Stat Ann 1962 Rev § 28.287) . After questioning defendant Davis, the court accepted the guilty plea and on September 16, 1968, defendant was sentenced to serve four to five years in prison. Defendant now brings this appeal. The only issue with which we are faced is whether the trial court committed reversible error in accepting defendant’s plea of guilty. Defendant argues that his plea was accepted in contravention of GCR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). The main thrust of this argument is that the proceedings failed to establish a “breaking”. A review of the record discloses that defendant, in his own words, described entering the particular business establishment on a Sunday morning by pushing open a door. Authority dictates that the slightest force is all that is necessary to constitute a breaking. See 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 1133, p 1527; People v. White (1908), 153 Mich 617; and People v. Lambo (1967), 8 Mich App 320. Furthermore, one of Davis’ codefendants testified that he removed a small plate glass window to gain entry into the business establishment. Another codefendant also described Davis’ participation in these events. Davis, acting in concert with his codefendants, may be punished as if he had directly committed the offense. MCLA § 767.39 (Stat Ann 1954 Rev §28.979). The transcript also discloses that defendant appeared with counsel, was informed of his privilege against self-incrimination and his right to jury trial. There is no question that the plea of guilty was knowingly and voluntarily made. Defendant was apprised of the maximum prison sentence he faced if proven guilty. The events surrounding defendant’s apprehension strongly reinforce his plea of guilty. See People v. Curley (1894), 99 Mich 238. Thus, we find no evidence that a miscarriage of justice resulted from defendant’s plea of guilty. People v. Winegar (1968), 380 Mich 719, 733. Affirmed.	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Fitzgerald, J. This appeal arises from an action by the plaintiff, Herman R. Rasch, to recover sums allegedly due for breach of contract. The dispute arose upon the assignment of four patents from plaintiff to defendant, pursuant to the provisions of two contracts entered into by the parties. The contracts which are the subject of this action are entitled “Agreement in Respect to Inventions and Patent Rights” and “New Employee Patent Policy Announcement.” The complaint states in Count I that defendant failed to compensate plaintiff according to the con tract terms by “special awards” made to employees who assigned to defendant an “especially meritorious invention.” In Count II, plaintiff alleges that no award was made to him on the basis of an “implied promise” or agreement that the company would make a “special award” to those employees who discovered an especially “meritorious invention.” Plaintiff seeks damages in the amount of $20,000,-000. In response to the complaint, defendant filed a motion for summary judgment. Plaintiff filed a motion to amend his complaint pursuant to GCR 1963, 118.5, which was subsequently denied by the court and summary judgment entered for defendant. The trial court held that plaintiff had not stated a cause of action and could not recover under the contract in that there was no legal obligation on the defendants to make a “special award” even though the inventions were “especially meritorious.” It was also held that no recovery could be had on an implied contract theory as the terms of the agreement were embodied in the express contract. The issue with which we are concerned is whether the complaint or the proposed amended complaint state a claim upon which relief could be granted. A review of the applicable court rules indicates that although plaintiff could have filed an amended complaint as a matter of right at any time before summary judgment was entered, he chose not to do so, but, in fact, filed a motion for leave to amend his complaint under GCR 1963, 118.5. 1 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), p 4-13. The trial court reviewed the briefs of the parties on the motion for leave to amend as well as the proposed amended complaint, heard oral argument, and concluded that the proposed amendment also failed to state a claim upon which relief could be granted. In spite of tbe fact that the proposed amended complaint received a complete review by the lower court, we conclude that had it been properly filed as a matter of right, the same result would not have been reached and that plaintiff has been prejudiced thereby. Plaintiff contends that he was denied relief on the assumption that he could not prove his claim. He argues that his designs did prove “meritorious,” and in the absence of any denial in the form of affidavits included within the motion for summary judgment or in an answer to the complaint, his statements must be taken to be true. A thorough review of the complaint and the proposed amended complaint in the instant case discloses a genuine issue of fact. Defendants contend that the only important difference between Count I of the -original complaint and the amended complaint lies in paragraphs 9, 10 and 11, wherein plaintiff asserts that he was to receive a valuable consideration if his invention should prove meritorious, notwithstanding the language of the original agreement. The proposed amended complaint, when considered in a light most favorable to the plaintiff, alleges the existence of an oral agreement. This agreement was allegedly made between the parties for purposes of effecting a modification of the document entitled “Agreement in Respect to Inventions and Patent Rights,” which was signed on Mav 7, 1959. It is a well-established principle that the parties bound by an-agreement, be it written or oral, may alwáys change the agreement by a mutual consent of those involved. Such a modification may be effected either orally or through a writing. However, the burden of proving the modification rests upon the party alleging it. Bishop Electric, Inc. v. Simpson (1967), 7 Mich App 391. Hence, the parol evidence rule does not preclude plaintiff from proving a modification so long as it was subsequent to May 7,1959, the date on which the original agreement was signed. Summers v. Wagner (1891), 87 Mich 272; Johnson v. Douglas (1937), 281 Mich 247. Therefore, on the basis of the allegations recited in the complaint, as well as the,proposed amended complaint, we conclude that a factual issue had been raised as to the existence of a subsequent, modification of the original agreement. The trial court erred in granting defendant’s motion for summary judgment and should have also allowed the proposed amendment. Beversed. Costs to plaintiff. All concurred.	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Y. J. Brennan, J. Defendant Newark-Ferguson Electronics, Inc., appeals from a jury verdict and judgment awarding the widow of a deceased employee, William Dotson, $6,000 in damages, the difference between the life insurance in effect at the time of Dotson’s death and the life insurance that would have been in effect but for the defendant’s failure to apply for it. None of defendant’s six allegations of error, stated in order below, is of merit, and we affirm. 1. There is no evidence of a duty to apply for an increase in coverage. This allegation is belied by the record. It was uncontroverted that under a joint contribution plan with Canada Life Assurance Co., the defendant provided its salesmen with coverage of $4,000, and its supervisors with coverage of $10,000; that under the plan, the defendant was responsible for notifying the insurer of any changes in an employee’s status, including promotions; that while a salesman, Dotson had authorized the defendant to deduct his share of the premium; and that the defendant did not notify the insurer of Dotson’s promotion to supervisor. Defendant’s controller conceded Dotson’s being promoted from salesman to supervisor on October 14, 1966, but claimed that the promotion was probationary up to and including the time of Dotson’s death on March 6,1967. According to the controller, it was the defendant’s unwritten policy not to increase the insurance coverage of a probationary supervisor. To counter this self-serving testimony, the plaintiff acknowledged that the promotion had been probationary during the first month — Dotson receiving a salesman’s salary while performing the duties of a supervisor — and then offered evidence showing that by November 9,1966, the promotion was no longer probationary. This evidence consisted of testimony that Dotson began receiving a supervisor’s salary on November 16; two inter-office memos, one of October 14, 1966, announcing Dotson’s appointment as a “temporary store supervisor,” and one of November 9, 1966, announcing without qualification Dotson’s appointment as a “store supervisor” effective that date; and finally an organizational chart designating Dotson’s position as “store supervisor.” The jury’s finding is amply supported by the evidence. 2. The court erred by barring as irrelevant evidence of a divorce action instituted by Nancy Dotson and pending at the time of Dotson’s death. According to the defendant this evidence is relevant, since, so it is argued, Dotson’s marital troubles caused in him a certain emotional instability, and this instability was, in turn, the cause of his probation. Whether Dotson’s marital troubles indeed caused a certain emotional instability, and whether the emotional instability was indeed the canse for his probation are collateral issues, and therefore the admission of evidence concerning these issues was within the sound' discretion of the court. City of Detroit v. Porath (1935), 271 Mich 42, 64, 66. We perceive no abuse of that discretion, especially since the defendant was given an opportunity to establish its claim of probation with the controller’s testimony. 3. The court erred by declining to instruct the jury that should they find the insurance plan to be a gratuity, they should return a verdict for the defendant. No evidence was adduced by the defendant showing the plan to be a gratuity rather than what it appeared to be from the evidence adduced — part of the compensation due a management employee. Consequently, the instruction would have been unsupported by the evidence and improper. Tortora v. General Motors Corporation (1964), 373 Mich 563. Moreover, the court did tell the jury in a general instruction that they should return a verdict for the defendant should they find the defendant was not under a duty to apply for increased coverage. We find no error. 4. The court erred by declining to instruct the jury that Dotson’s cashing of his paychecks gives rise to a presumption that Dotson knew the coverage amounted to only $4,000. Dotson’s paychecks bore a'notation of the amount deducted from his salary as his share of the premium. The amount noted equalled his share of the premium required for $4,000 in coverage. In light of these notations, the defendant submitted the following request to charge: ' “You are' instructed that the cashing of payroll checks by William G-. Dotson creates a presumption that William Cr. Dotson knew the amount of insurance premium deducted from his payroll.” The court declined the ■ request, saying: “Section B of this relates to a-requested instruction that the cashing of a payroll check, checked by the decedent, created a presumption .that the decedent knew the amount of the insurance premium deducted from his salary, and likewise the amount of the coverage therefore obtained. An attempt to draw any presumption from the proof offered, would have been purely speculative. The employee,' now the decedent, being non-available, it is impossible to do other than speculate what knowledge, if any, he may have had.” We do not differ with this ruling. For all anyone knows, Dotson believed his share remained constant with an increase in coverage. In any event, Dotson was entitled to $10,000 in coverage and had a right under the insurance plan to rely on the defendant to take whatever steps were necessary for the increase in coverage. What he believed his coverage was is irrelevant. 5.. Nayicy Dotson is without standing to sue, either as a third-party beneficiary of the insurance plan or otherwise. .... . The issue was not raised before or during trial, and consequently will not be considered on appeal. Poss v. Rossen-Poss Agency, Inc. (1966), 3 Mich App 726, 729. 6. The court exceeded its authority by adding interest to the jury’s award on its own motion. In Gottesman v. Fea-Bea Construction Co. (1959), 355 Mich 6, the Supreme Court held that a trial court may add interest to an award “where, (1) it is "obvious the jury has failed to award interest, (2) where the claim is liquidated, and (3) where the interest is not a part of the damages but a mere legal incident to the plaintiff’s action.” As in Gottesman, the court in the present case did not instruct the jury on interest, and therefore it seems likely that the jury failed to take interest into account. The damages in the present case, if any, were equal to the difference between the coverage in effect and the coverage that would have been in effect but for the defendant’s failure to apply for it, that is, $6,000, and therefore the damages were liquidated. And finally, the interest was added pursuant to MCLA § 438.7 (Stat Arm 1964 Rev, § 19.4) and was therefore merely incidental to Nancy Dotson’s action. Again we find no error. Affirmed. All concurred.	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Fitzgerald, J. Mergenthaler Linotype Company brought an action against Transamerican Freight Lines, Inc., and Hastings Truck Company, Inc., contending that a linotype machine was damaged by one or both of the defendants while being shipped from New York to Kalamazoo. Plaintiff had sold the machine to the Kalamazoo Gazette and arranged with Transamerican to ship it to Kalamazoo. Mer gen thaler issued a nonnegotiable straight. bill, of lading to “the Kalamazoo Gazette c/o Hastings Truck Co., Inc.” at 738 E. Walnut Street. Transamerican had no dealings with Hastings other than to deliver the machine to them. The Gazette made all arrangements with Hastings in accordance with a longstanding practice. Hastings had been employed to store the machine until the Gazette had room for it, at which time Hastings would deliver and install it. Transamerican delivered the machine to the Hastings warehouse where an employee signed the bill of lading which stated that the property was in apparent good order. There was no visible damage to the shipping container which was then removed and the machine remained under a plastic cover until its. delivery to the Gazette. During ■ the trial, a Hastings employee testified that he noticed some damages to the skids that the machine was shipped on. He described the damage as being splintered wood that looked as if it had been inflicted by the forklift truck used by Hastings employees in unloading the machine from the Transamerican truck. On June 1, 1966, Hastings loaded the machine on one of its trucks and moved it to the Gazette building which was less than a mile away. Upon arrival, the plastic cover was removed and the machine, was placed on an elevator and moved to the installation site on the second floor where a Gazette employee noticed the damage. There was some testimony that because of the presence of metal filings and the fact that broken parts appeared worn, the damage had been inflicted some time earlier. A judgment was eventually granted against Hastings Truck Company,. Inc. A judgment of no cause of action was .entered as to Transamerican Freight Lines, Inc. Several issues are raised on this appeal, the first being the question of whether Transamerican is liable as the initial carrier on a showing that the machine was in good order when received by Transamerican and later appearing damaged when placed at its final destination. During the course of the trial, plaintiff Mergenthaler moved for summary judgment against Transamerican on the grounds that there was no genuine issue as to any material fact. Defendant Hastings avers that it was- error to have ruled against the motion. It is argued that under the facts of the instant case, Transamerican is liable under the Car-mack Amendment to the Interstate Commerce Act, § 13(b) 54 Stat 919 (1940), 49 ITSCA §20(11), which provides in part: “Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, . . . shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass.” During the trial, plaintiff contended that Transamerican, as the initial carrier, was liable under the act if it could be shown that the machine was undamaged when it was placed in the hands of the initial carrier and later appeared damaged when it was delivered at its destination. All of the parties readily agreed that the machine was undamaged when Transamerican took possession and was subsequently damaged between the aforementioned time and when it was uncrated and placed in the Gazette building. Thus, it was on this basis that Mergenthaler claimed it was entitled to a summary judgment against Transamerican. The trial court was of the view that the Hastings Truck Company was not a connecting carrier as contemplated by the statute, supra, and hence Transamerican could not be held liable if the damage took place after Hastings took possession. The court ruled that when Transamerican made delivery to Hastings, this was delivery to the consignee on the bill of lading and damage was inflicted subsequent to delivery. A complete review of applicable authorities indicates that Hastings was not a connecting carrier but rather an agent of the Kalamazoo Gazette and delivery to Hastings constituted delivery to the Gazette. The liabilities of a carrier terminate upon delivery to the consignee. Republic Car Loading and Distributing Co. v. Missouri Pacific Railroad Co. (CA 8, 1962), 302 F2d 381; Continental Tanners, Inc. v. Gonic Footwear, Inc. (1965), 106 NH 297 (210 A2d 480). The Carmack Amendment does not impose liability on Transamerican, for the act applies to a carrier receiving goods “for transportation from a point in one state or territory or the District of Columbia to a point in another state, territory, District of Columbia . . . .” 49 TJSCA § 20(11). In the instant case, Transamerican received the machine at one point, New York, for transportation to another point, the Hastings Truck Company in Kalamazoo. Transamerican had no agreement for any further movement and it did not accept goods for shipment “to a point on another line.” The Gazette had a longstanding arrangement with Hastings for the latter to receive, store, and install equip ment, which was totally separate and independent of Transamerican’s agreement to ship the machine to Hastings. Therefore, here, as in Rhoades, Incorporated v. United Air Lines, Incorporated (CA3, 1965), 340 F2d 481, there was no connecting carrier relationship and the Carmack Amendment is not controlling. We are also asked to consider whether the decision of the trial court that the machine was damaged while in the possession of the Hastings Truck Company was clearly erroneous and against a preponderance of the evidence. Under GrCR 1963, 517.1, the findings of a trial court sitting without a jury are to he reversed only when they are clearly erroneous. An examination of the record discloses the existence of a delivery receipt by Hastings’ employee. This established prima facie that the machine was received in apparent g’ood order. Louisiana Southern Ry. Co. v. Anderson, Clayton & Co. (CA 5, 1951), 191 F2d 784. Hastings failed to produce any evidence which would show that the machine was broken when it was delivered to them by Transamerican. The fact that no one noticed anything unusual about the machine until it was placed on the second floor of the Gazette building is evidence of the fact that it was damaged at a later rather than earlier point in time. The trial court also noted that Hastings had to load the machine onto a forklift, take it to the second floor and unload it, while Transameriean had only to load it once. While, there was some contradictory evidence, such as the testimony that the broken parts of the machine had been rubbing together for some time, indicating that the break was an old one, the court did have sound evidence before it from which it could logically conclude that the machine was broken while in the possession of Hastings. In light of this evidence, we cannot say that the trial court’s findings were clearly erroneous. Tann v. Allied Van Lines, Inc. (1965), 5 Mich App 309. Affirmed. Costs to appellees. All concurred.	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Per Curiam. Plaintiff Northtown Transit Mix, Inc. (hereinafter Northtown) filed the instant suit to enjoin defendant Manufacturers National Bank (hereinafter the Bank) from proceeding with its foreclosure action commenced after the Bank had declared a secured loan it had made Northtown in default. Appellant LeRoy Hosner, surety for the loan, moved to intervene as defendant. The motion was granted and Hosner filed an answer and counterclaim against Northtown. Hosner also obtained writs of garnishment which the circuit court later dismissed. Subsequently, the original parties reached an agreement and joined in a motion to dismiss. Hosner objected. The motion was granted, but without prejudice to Hosner’s counterclaim. Hosner brings this' ap'pehl as of right. The Bank has filed a motion to dismiss or affirm pursuant to G-CR1963, 817.5(1), (3). Hosner’s appeal from the order dismissing the writs of garnishment is not before the Court because an appeal from that order was not taken within the time allowed by GCR1963, 803.1. ■ It is Hosner’s position on appeal, without citation of authority, that the dismissal below was ’“clearly prejudicial” to his counterclaim against Northtown and was injurious to his rights as surety. Hosner does not give any reasons why the dismissal was prejudicial to his counterclaim and our review of the record does not disclose any reason. Moreovér, the trial court’s judgment of dismissal specifically provides: “that the counterclaim of intervening .defendant shall be dismissed without prejudice.” (Emphasis supplied.) Hosner also fails to explain why the dismissal injured his position as surety and does not allege that the actions taken by the Bank toward settlement with Northtown were contrary to the prbvisions of its contract with Hosner. Also, it appears that the actions were actually beneficial to Hosner’s position of surety. A review of the record and an examination of the briefs make it manifest that the questions sought to be reviewed are without merit. Affirmed.	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Ryan, J. On February 5, 1954, defendant Louis Maurice Smith, then 18 years of age, was committed to the Kalamazoo State Hospital following a series of relatively minor acts of sexual misconduct such as indecent exposure, window peeping and stealing articles of feminine apparel. Eight months after defendant’s commitment a student nurse was found raped and strangled to death in the basement of the hospital. That same day, November 5, 1954, defendant was arrested and charged with her murder. On November 17, 1954, a preliminary examination was conducted at which the evidence, including the defendant’s confession, indicated that the crime of murder had been committed and that there was probable cause to believe the defendant committed it. As a result, the defendant was bound over to the circuit court for further proceedings on the charge of murder. On November 22, 1954, Smith was arraigned upon the information in the circuit court on the murder charge. He stood mute and a plea of not guilty was entered in his behalf by the court. Shortly after defendant’s arraignment on the charge of murder his father filed a petition under MCL 780.501-780.509; MSA 28.967(l)-28.967(9), hereinafter known as the Criminal Sexual Psychopath Act, or the CSP act, praying that the court conduct a hearing to determine whether the defendant was a criminal sexual psychopathic person. The court granted the petition and appointed three qualified psychiatrists to examine the defendant and file with the court a written report of their examinations together with their conclusions. In due course the report was filed in which the psychiatrists unanimously concluded that defendant was a criminal sexual psychopathic person and recommended that he be committed to the state hospital commission for treatment. After considering the psychiatric report, expert testimony and other evidence, the court determined that defendant was a criminal sexual psychopathic person and, pursuant to. §§ 5 and 7 of the Criminal Sexual Psychopath Act, ordered him to be committed to the state hospital commission to be confined in an appropriate state institution until fully and permanently recovered from such psychopathy to a degree that he would not be a menace to others. Based upon the determination that defendant was a criminal sexual psychopathic person, the criminal action then pending against defendant was barred by § 8 of the act. Defendant spent the next 18 years confined under maximum security conditions in Ionia State Hospital. During this period of confinement the criminal sexual psychopath statute was repealed by 1968 PA 143. Pursuant to § 1 of Act 143, persons who had been committed by a criminal court as criminal sexual psychopaths under the provisions of the former act remained confined in state institutions under the jurisdiction of the state Department of Mental Health. By Administrative Order 1969-4, this Court continued the release provisions of § 7 of the Criminal Sexual Psychopath Act. In 1972, defendant was asked whether he would be willing to be a research subject for experimental psychosurgery in a project which had been initiated at the Lafayette Clinic in Detroit. He agreed and shortly thereafter was transferred to the clinic. Before the experimental treatment had actually begun, the project became publicly known and a taxpayer suit was instituted in Wayne Circuit Court to prevent its continuation. Defendant, designated as John Doe in order to protect him from inappropriate publicity, was the named plaintiff in the action. A three-judge trial court was impanelled to resolve the matter. Prior to consideration on the merits, the court appointed counsel to represent defendant and 23 others similarly situated. Among other things, defendant’s court-appointed counsel challenged the constitutionality of the Criminal Sexual Psychopath Act under which defendant was committed. The three-judge court found merit in the challenge and concluded that John Doe was unconstitutionally detained. Essentially, the court reasoned that the standards for commitment under the Criminal Sexual Psychopath Act were less stringent than the standards otherwise applicable for commitment civilly, and the standards for release under the former act were more stringent than for release under the latter. The court concluded that the differences in the standards did not meet the requirements of present day Fourteenth Amendment equal protection. Accordingly, the detention of John Doe was held to be unconstitutional. Despite finding his commitment unconstitutional, the court did not order defendant’s release until April 9, 1973, nearly three weeks after the entry of its opinion. Prior to the entry of the release order, the assistant attorney general informed the court that the state, after consideration of all the facts and circumstances in the case, had decided not to institute civil commitment proceedings against the defendant. On the date the Wayne Circuit Court issued the order releasing defendant from his commitment, the prosecutor’s office for Kalamazoo County filed a petition for a bench warrant in the circuit court for the County of Kalamazoo to apprehend and return defendant to Kalamazoo for disposition of the murder charge. On May 3, 1973, defendant filed a motion for hearing on the petition for bench warrant and a motion to quash the information. The motions were based upon the contention that the reinstitution of criminal proceedings based upon the 1954 homicide was barred by § 8 of the repealed Criminal Sexual Psychopath Act and that the prosecution would violate defendant’s right to a speedy trial. Following a hearing, the Kalamazoo Circuit' Court, on December 14, 1973, issued an opinion rejecting defendant’s contentions and authorizing a bench warrant. On January 9, 1974, at the request of the defendant and upon stipulation of the people, the trial court entered an order staying the proceedings in this case until a decision was made by the Court of Appeals. On January 8, 1975, the Court of Appeals affirmed the judgment of the circuit court. 57 Mich App 556; 226 NW2d 673 (1975). Thereafter, the people moved to discharge the stay of proceedings. Defendant, on February 10, 1975, petitioned this Court for immediate consideration of the issue. Meanwhile, the trial proceeded through the normal course of motions, hearings and pleadings. On February 12, 1976, this Court rendered an order allowing trial to continue in the matter. 396 Mich 955 (1976). On February 14, 1976, trial commenced in the circuit court for the County of Kalamazoo. The sole defense asserted at trial was that of insanity. The jury rejected the insanity defense and found the defendant guilty of second-degree murder. Pursuant to the order rendered by this Court on February 12, 1976, defendant appeals directly to this Court. Appellant’s principal contention is that § 8 of the CSP act prohibited the state from trying him for the 1954 homicide. Statutes designed to cope with sex offenders, who because of a psychopathic condition commit or have the propensity to commit such offenses, developed in the late 1930’s and 1940’s. The intent of such statutes was to provide civil commitment, segregation and treatment of sexual psychopathic persons rather than criminal punishment, the ineffectiveness of which, as a deterrent, had been demonstrated in the behavior of a number of recidivist sex offenders. The statutes manifested legislative recognition that sexual psychopaths presented a different or unique criminal problem and as such should be distinguished from and treated differently than the ordinary class of criminals. As expressed in People v Piasecki, 333 Mich 122, 142; 52 NW2d 626 (1952): "By the adoption of the act here in question the legislature sought to provide for the protection of the public against persons who, while not insane or feeble-minded, present a serious problem. The method prescribed for the care and treatment of such persons rests on the theory that because of their mental condition they should not be classed as criminals in the ordinary sense of the term, nor subjected to punishment as such for acts resulting from the psychopathic condition or mental disorder.” The criminal sexual psychopath statutes enacted in various jurisdictions were substantially the same, particularly with respect to their definition of a criminal sexual psychopathic person. Essentially, a sexual psychopath was defined as a person who, while not insane or feeble-minded, had a mental disorder coupled with propensities toward the commission of criminal sex offenses. Although the various sexual psychopath statutes were substantially consistent in defining a sexually psychopathic person, they diverged somewhat in delineating the effect the adjudication of psychopathy had upon the underlying or pending criminal charge. For instance, some jurisdictions enacted sexual psychopath statutes under which criminal proceedings were abeyant until such time as the defendant was discharged from hospitalization. Other states had statutes which provided that a condition of sexual psychopathy did not constitute a defense to a criminal charge nor did it abrogate defendant’s liability to be tried for the offense. Michigan’s statutory approach to a conviction or charge pending against a defendant at the time he was adjudged to be a criminal sexual psychopath was unique among those states adopting sexual psychopath statutes because of the bar-to-prosecution provision of § 8. In the case before us defendant focuses upon this unique statutory bar and argues that he was finally adjudged a criminal sexual psychopathic person, the consequences of which inhere in him. He concludes that once the final determination of psychopathy was made, the state is prohibited from prosecuting him regardless of what may occur in the future. In opposition, the prosecutor argues that the Wayne circuit decision in John Doe v Dep’t of Mental Health wholly voided the Criminal Sexual Psychopath Act and nullified all effects of the statute since its inception. The courts below agreed with the prosecutor’s conclusion, noting that under generally applicable legal principles an unconstitutional law is, in legal contemplation, inoperative as if it had never been passed. Accordingly, the Court of Appeals affirmed the trial court’s ruling that § 8 of the repealed CSP act did not prohibit the prosecution of defendant on the 1954 murder charge. 57 Mich App 556; 226 NW2d 673 (1975). The traditional notion that a statute declared unconstitutional is in law a nullity from its inception is a legal fiction of judge-made origin which serves to supply logical symmetry to judicial declarations that a specific legislative pronouncement was beyond legislative capacity. In the early case of Norton v Shelby County, 118 US 425, 442; 6 S Ct 1121; 30 L Ed 178 (1886), the United States Supreme Court declared that "[a]n unconstitutional statute * * * confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed”. This Court recognized the same principle in Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160, 165; 150 NW2d 752 (1967), observing "an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; * * * the invalidity thereof dates from the time of enactment * * * and * * * such a provision is at no time effective for any purpose”. It is not a rule without exceptions, however. Like all rules of law its wooden application, resulting in fundamental injustice, is intolerable. In the recent case of Lemon v Kurtzman, 411 US 192; 93 S Ct 1463; 36 L Ed 2d 151 (1973), the United States Supreme Court acknowledged approvingly its repeated departure from its own early nullity ab initio view in Norton, supra. After citing a litany of the criminal cases in which newly declared constitutional rights for the protection of defendants have been declared to have no retroactive application, and civil cases in which electoral laws and municipal financing statutes have been struck down while the effect of actions taken under them is upheld, the Court cited the case of Chicot County Drainage Dist v Baxter State Bank, 308 US 371, 374; 60 S Ct 317; 84 L Ed 329 (1940), in which former Chief Justice Hughes wrote: "It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most diffi cult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” Finally, the Lemon Court observed: "However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.” Like the United States Supreme Court, we perceive no compelling reason to confine the modern approach of excepting extraordinary cases from the traditional rule of retroactivity to those "constitutional cases involving criminal procedure or municipal bonds * * ”. We find the extraordinary facts and circumstances of the case before us to comprise a classic example of justification for departure from the general rule of total ab initio nullity applied in the courts below. Section 8 of the since repealed Criminal Sexual Psychopath Act provides: "No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.” This provision is an unequivocal legislative declaration that persons finally adjudged criminal sexual psychopaths would be forever insulated from the punitive sanctions normally imposed for criminal conduct. The theory was that because of their mental condition such persons should not be classed as criminals in the ordinary sense of the term nor subjected to punishment as such for acts resulting from their psychopathic condition or mental disorder. People v Piasecki, supra, at 142. The legislation expressed a considered public policy that persons adjudged sexual psychopaths were less culpable for their actions because of their mental disorder and therefore would not be punished as criminals in the ordinary sense. In support of that policy, the State of Michigan assured Louis Smith that if he was finally adjudged a criminal sexual psychopath upon a hearing in which he would be denied the exercise of virtually the whole panoply of constitutional protections which were otherwise his as a defendant in a criminal prosecution, which afforded him fewer protections than those extended to one whose commitment is sought as a mentally ill person and which could result in his confinement in a mental institution for an indefinite term, conceivably the rest of his life, that he would never be "tried or sentenced upon the offense with which he originally stood charged * *”. Such an adjudication was made in January, 1955. The determination was deemed to be final and was acted upon accordingly. Smith was given the status of a criminal sexual psychopathic person and for 18 years was confined in a mental hospital in consequence of the imposition of such status, until he was released by the trial court which found his confinement to have been ordered under an unconstitutional statute. There then ensued an effort to prosecute him for the homicide committed 18 years earlier. In opposing Smith’s request that the bar of § 8 of the Criminal Sexual Psychopath Act be enforced, the prosecutor relies upon the legal fiction that since the act was a nullity from its inception, the state’s assurance to Smith that he would never be tried or sentenced is likewise a nullity. Thus the solemn promise of the sovereign is broken in the name of constitutional construction. We think that comports neither with traditional notions of fundamental fairness in the classic constitutional sense, nor the more elemental and compelling principles of fundamental human justice rooted in the natural law. A more classic case of "status” established and "prior determinations deemed to have finality and acted upon accordingly”, of which Justice Hughes wrote in Chicot, than the one before us would be hard to imagine. Smith’s status as an adjudicated criminal sexual psychopath inheres in him. It cannot be erased, or forgotten, or undone, any more than can his 18 years of confinement thereunder. They are for all time a reality of his life. The § 8 permanent bar to prosecution is in every sense of the word an inextricable part of that status and similarly cannot be erased, forgotten or undone. It, too, inheres in him. It is our duty to enforce it. We do not undertake to fit today’s decision into any of the conveniently familiar constitutional pigeonholes such as double jeopardy, speedy trial, collateral estoppel, due process or the like. Those constitutional doctrines do not neatly dispose of the unusual facts before us. This is the occasional aberrant case which leaves lawyers and judges groping for familiar legalese with which to tag it and in search of a familiar doctrinal groove into which it might fit. In truth, none exist. It is a case without precedent and very likely without duplicate hereafter. It calls for this Court to eschew familiar formulae and declare simply and clearly what justice requires and why. For the reasons stated, we declare that it requires that the decision of the Court of Appeals be reversed and Louis Smith’s conviction be vacated and that he be discharged from custody forthwith. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J. Repealed by 1968 PA 143. Because we are persuaded it will be of assistance to the reader, we reluctantly burden the case report by reproducing the now repealed Criminal Sexual Psychopath Act as it read in Compiled Laws of 1948. "Sec. 1. Any person who is suffering from a mental disorder and is not insane or feeble-minded, which mental disorder has existed for a period of not less than 1 year and is coupled with criminal propensities to the commission of sex offenses is hereby declared to be a criminal sexual psychopathic person. "Sec. 2. Jurisdiction of criminal sexual psychopathic persons charged with criminal offense is vested in the circuit courts of the state, the recorders court of the city of Detroit, and the superior court of the city of Grand Rapids. "Sec. 3. When any person is charged with a criminal offense, or has been convicted of or has pleaded guilty to such offense and has been placed on probation, or has been convicted or pleaded guilty to such offense but has not yet been sentenced, and it shall appear that such person is a criminal sexual psychopathic person, then the prosecuting attorney of such county, or the attorney general, Or some one on behalf of the person charged, may file with the clerk of the court in the same proceeding wherein- such person stands charged with, or has been convicted of, or has pleaded guilty to such criminal offense, a statement in writing setting forth facts tending to show that such person is a criminal sexual psychopathic person. "Sec. 4. Upon the filing of such statement by the prosecuting attorney or the attorney general the court shall, or if filed on behalf of the accused the court may, appoint 2 qualified psychiatrists to make a personal examination of such alleged criminal sexual psychopathic person who shall file with the court a report in writing of the results of their examination together with their conclusions. Said report shall be open to the inspection of the counsel for the accused, but shall not be competent evidence in any other proceeding against accused except the hearing to inquire into his alleged psychopathy. Said alleged psychopath shall be required to answer the questions propounded by such psychiatrists under penalty of contempt of court. In the event that both of such psychiatrists in such report state their conclusions to the effect that such person is a criminal sexual psychopathic person, then proceedings shall be had as provided in this act prior to a trial of such person upon the criminal offense with which he then stands charged, or prior to sentence if he then stands convicted and has not been placed on probation, or prior to completion of probation sentence. "Sec. 5. Upon a hearing held for that purpose the court without a jury, unless a jury is demanded prior to said hearing and within 15 days after the filing of the last of said reports, shall ascertain whether or not such person is a criminal sexual psychopathic person. Upon such hearing it shall be competent to introduce evidence of the commission by such person of any number of similar crimes together with the record of the punishment inflicted therefor. If such person is determined to be a criminal sexual psychopathic person, then the court shall commit such person to the state hospital commission to be confined in an appropriate state institution under the jurisdiction of either the state hospital commission or the department of corrections until such person shall have fully and permanently recovered from such psychopathy. "Sec. 6. The state hospital commission shall have the right to release such person upon parole to such persons and under such conditions as his condition, in the judgment of the state hospital commission, merits. "Sec. 7. Such criminal sexual psychopathic person shall be discharged only after he shall have fully recovered from such psychopathy. At any time, when he shall appear to have so recovered, a petition in writing setting forth the facts showing such recovery may be filed with the clerk of the court by which he was committed and such court shall proceed to determine whether or not he has fully recovered from such psychopathy. Jury trial of such issue may be had, if demanded before the trial of said issue and within 15 days after the filing of such petition. If, following such hearing, such person is found to have fully recovered from such psychopathy, then the court shall order such person to be discharged from the custody of the state hospital commission. In the event such person is found to have not fully recovered from such psychopathy, then the court shall order such person to be returned to the custody of the state hospital commission to be held under the previous commitment of such person. "As long as such psychopath shall remain in the custody of the department of mental health of the commission he shall be examined at least once a year by 2 psychiatrists appointed by the commission who shall report in writing their findings including therein any facts tending to show appearance of recovery, to the committing court and to the commission. These reports shall thereafter be available to such committed person’s attorney for use in petitions for discharge, and also as evidence at any hearings on such petitions if so requested by petitioner, by the prosecutor or by the court. "Sec. 8. No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition. "Sec. 9. The state shall defray all expenses of such person while so confined in a state institution and may recover the amount so paid from such person.” John Doe v Dep’t of Mental Health, Wayne County Civil Action (Docket No. HC-73-19434-AW). See, e.g., In re Stone, 87 Cal App 2d 777; 197 P2d 847 (1948); People v Sims, 382 Ill 472; 47 NE2d 703 (1943). See, e.g., State ex rel Pearson v Ramsey County Probate Court, 205 Minn 545; 287 NW 297 (1939), aff'd 309 US 270; 60 S Ct 523; 84 L Ed 744 (1940).	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Jansen, J. Plaintiff, Jack C. Chilingirian, appeals as of right from the trial court’s August 28, 1989, order granting defendants’ motion for summary disposition pursuant to MCR 2.116(0(10). We affirm. On December 8, 1983, defendant City of Fraser retained the law firm of Berschback, Kerwin, Locicero, Brennan and Chilingirian as legal counsel for the city. Plaintiff is a member of the firm and was responsible for much of the city’s litigation. On July 23, 1987, the individual defendants, in their capacity as city council members, voted to dismiss plaintiff from all city business effective August 1, 1987. Plaintiff filed suit against defendants on October 19, 1987, alleging that his termination as city attorney constituted a violation of the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. Specifically, plaintiff alleged that his discharge was prompted by his investigation into certain irregularities and potential violations by the city relating to a loan agreement between the city and the Michigan Department of Transportation. Defendants moved for summary disposition on April 17, 1989, alleging that plaintiff was not entitled to the protection of the wpa because he was not an employee of the city, but, rather, an independent contractor. Defendants also argued that the wpa was inapplicable because at the time plaintiff was discharged, he was not about to report any violations of the loan agreement. Plaintiff responded by arguing that the definition of "employee,” as contained within the wpa, was broad enough to cover independent contractors. Plaintiff also alleged that he was protected under the wpa because he was about to report a suspected violation. Finally, plaintiff alleged that summary disposition was improper because factual disputes existed regarding the motive, intent, and factual context of his termination. On August 28, 1989, the trial court issued its opinion and order granting defendants’ motion for summary disposition. The trial court, by employing the "control test,” found that plaintiff "was not a person under a contract of hire, but an independent contractor.” The trial court concluded that the wpa "is not available to this non-employee” and therefore it would be impossible for plaintiff to support his claim at trial. On appeal, plaintiff contends that the trial court erred in granting defendants’ motion for summary disposition on the basis of its finding that plaintiff was an independent contractor and therefore not entitled to the protection afforded by the wpa. We disagree with plaintiff. This Court has recognized a "public policy” exception to the general rule that employment at will may be terminated at any time for any reason. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). This exception is based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. Id. These proscriptions are most often found in explicit legislative statements prohibiting discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. Id. The wpa is one such statute. Id. The wpa seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law. Hopkins v City of Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987). Inherent in the wpa is a purpose to protect the public by protecting employees who report violations of laws and regulations. Id.; Chilingirian v City of Fraser, 182 Mich App 163, 165; 451 NW2d 541 (1989). Pursuant to MCL 15.362; MSA 17.428(2): An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. The wpa defines an employee as "a person who performs a service for wages or other remuneration under a contract of hire, written or oral, expressed or implied,” including employees of the state or one of its political subdivisions, but excluding the state classified civil service. MCL 15.361(a); MSA 17.428(l)(a). A person is defined as "an individual, sole proprietorship, partnership, corporation, association, or any other legal entity.” MCL 15.361(c); MSA 17.428(l)(c). We are of the opinion that although the trial court correctly concluded that plaintiff was an independent contractor not afforded the protection of the wpa, it utilized the wrong test in reaching this result. The trial court stated that the "test as to whether one is an independent contractor is one of control, not economic reality.” With this statement we cannot agree. The "control test” has been limited to those situations where respondeat superior has been alleged and the vicarious liability of a master is involved. Nichol v Billot, 406 Mich 284, 297; 279 NW2d 761 (1979); Parham v Preferred Risk Mutual Ins Co, 124 Mich App 618, 624; 335 NW2d 106 (1983). The control test has been abandoned as the exclusive criterion by which the existence of an employee-employer relationship, for the purpose of remedial social legislation, is determined. Goodchild v Erickson, 375 Mich 289, 293; 134 NW2d 191 (1965). Because vicarious liability of a master is not alleged herein, we find the control test to be inappropriate. Nichol, p 297. The test to be employed is one of "economic reality.” Goodchild, p 293. The economic reality test looks to the totality of the circumstances surrounding the work performed. Derigiotis v J M Feighery Co, 185 Mich App 90, 94; 460 NW2d 235 (1990). Relevant factors to consider under the test include: (1) control of a worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Id.; Parham, p 623. All the factors are viewed as a whole and no single factor is controlling. Derigiotis, p 95. In the present case, it is clear that plaintiff was not "in-house” counsel for the city. The city was only one of the law firm’s clients, and the law firm provided legal services to a number of other clients. Plaintiff did not maintain an office on the city’s premises, but instead maintained his own office and had his own support staff at his firm’s location. Plaintiff was not involved in the city’s pension program and the city did not pay plaintiff’s salary. Instead, plaintiff would bill the city on a monthly basis at an hourly rate for the services rendered. Finally, plaintiff was not subject to the control of the city with respect to the method of his work, but only with respect to the results to be achieved. We are of the opinion that these facts establish that plaintiff was an independent contractor engaged in his own independent business. Plaintiff did not devote all of his time to work for the city, and he held himself out to the public as performing an independent business. We believe that the trial court correctly concluded that plaintiff was an independent contractor and not an employee of the city. Plaintiff and his law firm were merely independent contractors acting on behalf of their client, the city. Williams v Logan, 184 Mich App 472, 478; 459 NW2d 62 (1990). Summary disposition was proper, because it is impossible for plaintiff to support his claim at trial. Wagner v Regency Inn Corp, 186 Mich App 158, 166; 463 NW2d 450 (1990). Plaintiff also contends that the doctrines of collateral estoppel and res judicata, as they relate to the plaintiff’s other action in the federal courts, are not applicable in the present case. However, as plaintiff admits in his brief on appeal, the trial court did not address this issue. Accordingly, review of this issue on appeal is inappropriate, because our review is limited to those issues actually decided by the lower court. Preston v Dep’t of Treasury, 190 Mich App 491, 498; 476 NW2d 455 (1991). We therefore refrain from addressing this issue. Affirmed.	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Memorandum Opinion. Defendant was convicted of assault with intent to rob being unarmed, and appeals. The people-have filed a motion to affirm. Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm granted.	[ 51, 32, 3, 27, -24, 15, 44, 39, -26, 66, -36, 2, -40, 4, -10, 9, 38, -4, 42, -45, -29, -29, 3, 23, -15, -55, -21, 23, 7, 49, 43, 9, -25, -12, 0, -49, 1, 18, -6, 36, -7, 47, -6, 60, -57, -3, -23, -16, -60, -29, 27, 0, 0, -16, -7, -2, -19, 3, 39, 28, 6, 26, -31, 17, -49, -20, -2, -16, -33, 0, -52, 17, -24, -30, -6, 24, 27, 48, 12, 3, -16, 13, 2, 25, 16, -25, 21, -38, 12, -57, 41, -7, -37, -35, 29, 9, 0, -45, 63, -36, -52, -19, 0, 1, -33, -3, -23, -24, 84, -42, -32, -8, 6, -29, -64, -48, 32, 22, -27, -59, -7, 19, 39, 36, 16, -19, 16, -17, -16, 28, 28, 46, 3, 41, -4, -33, 26, -7, -3, 11, -27, 37, 55, -21, -10, 37, 4, -40, 5, 62, 15, -1, -63, -14, -13, 13, -5, -27, -13, 27, -17, 18, -29, -17, 28, 10, -16, -17, 30, -22, -35, -32, 83, -2, 21, 35, -8, 44, -11, 25, 14, 51, -13, 15, -22, 43, -69, 6, 28, -67, -49, 87, 1, -28, 56, 15, 27, 26, 0, -10, 10, 13, 24, -46, -35, 1, -30, -10, 35, -15, 50, 29, -55, -22, 14, -40, 23, -25, -13, 27, -91, -35, -5, -15, -4, -5, -2, 33, -74, -35, 13, 12, -49, -30, 8, 9, 3, -20, 77, -39, -45, -3, 50, -36, 4, -30, 29, 21, 38, -24, 18, 37, -28, 37, -25, -57, 42, 2, -63, 43, -22, 43, 30, 46, -56, 40, -2, 5, -60, 42, 40, -20, -20, 56, 53, 43, -75, -4, 10, -40, 24, 27, 28, 0, -61, 26, 13, 3, 43, -18, 45, -23, -8, 24, 36, -9, -18, 24, -61, 1, 56, -7, -13, -20, -28, 29, 30, -68, -18, -14, 61, 99, -24, -10, -7, 3, 20, 13, 8, -19, -48, 0, 25, -71, 6, -25, 36, -38, 0, -14, -21, -43, -19, -10, 0, 65, 4, 9, 25, -10, 14, -9, 4, -26, -30, 57, -32, 10, -7, -2, -28, -26, -20, -30, -6, -26, -41, 2, 19, 2, -11, 33, 44, -30, 50, 43, -21, -10, -25, 20, -17, -81, -10, -25, -75, -1, 45, -67, -30, -1, -24, -59, 51, 4, 26, -2, 14, -17, 6, -24, -51, -25, -6, -76, -48, -9, 3, -28, 51, -29, -41, 11, 30, 0, -25, 3, -26, -15, 52, 39, -1, 49, 0, 28, -9, -4, -29, 20, 44, -22, -33, -61, -16, -3, 13, 27, -34, 9, 3, -49, -49, 8, -11, 0, -21, 21, 20, -18, 30, -7, -17, -21, -14, 34, -30, -44, -46, 2, 26, -25, -10, -28, 32, -65, 33, 56, 36, 56, 57, -24, 18, 30, 13, 6, 56, 10, -89, -20, 42, -18, 2, 18, -2, -6, 2, 6, 0, 27, 12, 32, -14, -3, 6, 7, -8, -13, 39, -12, 20, -18, -19, 17, 64, 16, -34, 8, -62, -15, -14, -42, -47, 36, -49, 2, 16, 27, 1, 27, 33, 26, -16, 51, -35, -20, -34, -43, 22, -28, -37, 49, 15, -29, 15, 28, -1, -4, -1, -25, -56, 14, 55, -65, -24, 7, 9, 47, -45, -16, 39, 13, -25, -8, 18, -36, 21, 11, 8, 49, 35, 44, -20, 26, 3, 56, -11, -30, -5, -22, 6, -44, 3, 2, 26, 50, -20, -15, -16, -1, 9, -15, 23, 3, -36, 7, -3, -23, 29, 15, 38, 5, 34, 38, -59, 55, -5, -40, 49, -18, -11, -26, -54, 1, 45, -56, -76, -25, -38, -8, 27, 20, -1, 35, -38, -10, 35, 9, 21, -9, -19, -76, 55, -44, -19, 36, -19, 7, -4, 28, -22, 7, -1, -31, 33, 10, -21, -95, -10, -8, 26, 8, -8, -45, -14, -7, -38, 56, -39, 24, -35, -4, 11, 69, -20, -12, 39, -6, -30, 4, 8, 17, 4, 29, 1, -45, 20, -3, 10, 84, -13, -22, 10, 36, -38, 15, 35, 47, 10, -18, 41, 38, 0, 18, -33, 4, 54, 47, 49, -2, 9, 6, -11, -21, 8, 26, -10, -28, 55, -2, -14, -1, 2, 50, 48, -32, -1, -23, 54, 38, -16, 53, 9, -21, 4, 5, 33, -42, -13, 1, -29, 30, -40, 16, -33, 63, 2, -44, -62, -53, 11, 3, -7, 16, 30, 26, 0, 31, 26, 27, 65, -12, 10, -36, 35, 9, 17, 8, 21, -8, 38, -26, 0, -10, 1, -33, 3, 9, -16, 2, 0, -6, 58, -60, -14, 25, -19, 36, 49, -65, 0, 45, -13, -22, -12, -3, -40, -12, -39, 36, 14, 14, -31, 7, 13, -8, -76, 0, 1, -44, 71, 39, -31, -32, -3, -16, 11, -49, -63, -76, -55, -49, 13, 40, -69, 59, 44, 46, 57, -11, 4, 13, -33, -25, 24, 6, 12, 4, -20, 45, -1, 13, 46, -29, -42, -27, -7, -3, 46, -20, 1, -61, 8, 31, 28, 10, 15, 40, 24, -35, -7, -39, 2, -44, -13, 36, -25, -15, 21, -35, 48, 23, -3, -19, 18, 1, 32, -5, -4, -30, 17, -26, 75, -22, -50, -27, -15, -19, -18, 39, -37, -45, 40, 73, -22, -10, -4, 0, -19, -49, 22, 26, 20, -7, 7, 16, 23, 0, -32, -4, -42, 31, 28, -6, -1, -3, 4, -48, 17, -53, -24, -36, 31, 24, -20, 27, -8, 18, 54, -15, -9, 18, 1, 11, 16, 61, 69, -12, 59, 23, 1, 23, 7, -1, 90, -23, 21, 31, -7, -69, 11, -19, -11, 50, 56, -2, 36, -29, -17, 9, 8, -20, -2, 33, 1, -64, -16, 5, 28, -51, 5, 57, 3, -13, -63, 8, 10, -24, -68, -1, -45, -12, -20, -15, -52, -11, 35, -32, 45, 48, -56, 3, 1, 23, -54, -45, 31, 14, -3, -8, 13, 27, 26, -1, -37, 0, 16, 10, -13, -45, -31, 18, 0, -57, -35, -42, -15, 34, -5, 47, 7, -38, 35, 7, -11, -1, -37, 39, 11, -34, 5, -16, -48, 13, 12, 5, 20, 8, -25, 28, -54, 16, -11, -6, 28, 11, 18, -8, -24, -27, 35, 31, -21, -38, 11, 19 ]
Per Curiam. Plaintiffs appeal as of right the Wayne Circuit Court’s orders granting defendants’ motions for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10) of plaintiffs’ warranty, negligence, and loss of consortium claims in an action arising out of a collision between Sam Westry’s motorcycle and an automobile. Plaintiffs seek recovery from Bell Helmets, Inc., as the manufacturer of Westry’s motorcycle helmet and from Anderson Sales and Service as the retailer of the helmet. We affirm. On September 26, 1986, Sam Westry was riding his motorcycle in a westerly direction on Plymouth Road in the City of Detroit. An automobile made a left turn in front of Westry, who wound up sliding under the automobile. Westry’s head became lodged under the front end of the vehicle near one of the tires. Bystanders at the scene of the accident lifted the front of the vehicle to free Westry. As a result of the accident, Westry sustained serious head injuries that prevent him from recalling any of the circumstances surrounding either the accident or the purchase of the helmet. Plaintiffs filed this lawsuit against defendants, alleging negligent manufacture or defect of the helmet, failure to adequately warn Westry of the helmet’s limitations, and breach of an implied warranty of merchantability. Defendants moved for summary disposition on the grounds that plaintiffs failed to state legal claims and that there were no genuine issues of material fact. Donald L’Heureux, vice president of Bell Helmets, attested to the fact that the type of helmet used by Westry met the standards set by the Snell Memorial Foundation, the most stringent standards that existed for the manufacture of motorcycle helmets. This permitted Bell Helmets to place a Snell sticker on the helmet. The sticker provided as follows: WARNING — SOME REASONABLY FORESEEABLE IMPACTS MAY EXCEED THIS HELMET’S CAPACITY TO PROTECT AGAINST SERIOUS INJURY. L’Heureux also averred that Bell Helmets put a second warning sticker on its helmets and that this warning conformed to Standard Z90.1(b) of the American National Standards Institute and provided: WARNING! NO HELMET CAN PROTECT THE WEARER AGAINST ALL FORESEEABLE IMPACTS. As a result of his head injuries, Westry was unable to recount any of the circumstances surrounding the purchase of the helmet. The helmet itself could not be found after it was examined and photographed by the police. Linda Westry stated that she did not hear any of the conversation between her husband and the salesman for Anderson on the date of purchase. The trial court ultimately ruled that Bell Helmets was under no duty to warn purchasers of the particular dangers involved in this case, which were characterized as "open and obvious.” The trial court also concluded that plaintiffs failed to assert genuine issues of material fact that the helmet was negligently manufactured or designed. A motion for summary disposition based on the failure to state a claim tests the legal sufficiency of the claim. MCR 2.116(C)(8); Bivens v Grand Rapids, 190 Mich App 455, 457; 476 NW2d 431 (1991). The motion is to be decided on the pleadings alone, and all well-pleaded facts and reasonable inferences drawn from them are taken as true. Bivens, supra. In negligence cases, summary disposition is properly granted under MCR 2.116(C)(8) if the trial court determines as a matter of law that the defendant owed no duty to the plaintiff. Bivens, supra; Sierocki v Hieber, 168 Mich App 429, 433; 425 NW2d 477 (1988). A trial court presented with a motion for summary disposition brought on the basis of a failure to state a genuine issue of material fact must give the benefit of reasonable doubt to the nonmovant and must determine whether a record might be developed that could leave open an issue with regard to which reasonable minds could differ. Arbelius v Poletti, 188 Mich App 14, 18; 469 NW2d 436 (1991). All inferences are to be drawn in favor of the nonmovant. Id. Before summary disposition may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Id. In a negligence action, the question whether a duty exists is for the court to decide. See Etter v Michigan Bell Telephone Co, 179 Mich App 551, 555-556; 446 NW2d 500 (1989); Tame v A L Damman Co, 177 Mich App 453, 455; 442 NW2d 679 (1989). Plaintiffs cite no authority for the proposition that manufacturers of motorcycle helmets have a duty to warn purchasers that a helmet cannot protect against certain types of impact, let alone that such warning must be permanently and conspicuously embossed on the helmet. Moreover, the helmet apparently bore two warning stickers to the effect that the helmet could not protect the wearer from all foreseeable impacts. On the basis of the foregoing, we agree with the trial court’s decision, made as a matter of law, that there was no duty as plaintiffs suggest. See Etter, supra; Tame, supra. Thus, no factual development could lead to a recovery. Therefore, the trial court properly granted defendants’ motions for summary disposition of plaintiffs’ failure-to-warn claim. See Bivens, supra; Sierocki, supra. Plaintiffs also assert that summary disposition was inappropriate because there was evidence of either the negligent design or negligent manufacture of the helmet. As plaintiffs correctly note, circumstantial evidence may be used to prove a defect without a physical examination of the helmet. See, e.g., Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713, 717; 202 NW2d 727 (1972) (possible brake failure in a new truck could be proved by circumstantial evidence where there is other evidence to support an inference that the brakes were defective); but cf. Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972) (assertion that a spring on an automobile’s accelerator became disconnected as a result of a defect in manufacture was not a reasonable inference that would remove it from the realm of mere conjecture and preclude the grant of a directed verdict). Review of Linda Westry’s affidavit in response to defendants’ motions reveals plaintiffs’ belief that the helmet would protect Sam Westry from injury and that Linda Westry saw neither any warning stickers on the helmet nor an instruction booklet that was allegedly provided by Bell Helmets. The affidavit does not address the existence of any facts indicating negligent design or manufacture other than those that were alleged in asserting the claim of failure to adequately warn consumers of the danger, a claim that we have already addressed. However, MCR 2.116(G)(4) requires a party faced with a motion under MCR 2.116(0(10) to set forth specific facts showing that there are genuine issues for trial rather than rest on mere allegations in the pleadings. See McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115; 469 NW2d 284 (1991). The inadequacy of Linda Westry’s affidavit to forestall the grant of summary disposition pursuant to MCR 2.116(0(10) is represented by the difference between Snider, supra, and Meli, supra. In Snider, the record contained corroborative evidence of a possible defect in the braking systems of similar trucks, supporting an inference that the defect may have caused the accident. In contrast, the only evidence of defect in the Meli case was the failure of a spring in the plaintiff’s vehicle to work properly. Absent other evidence indicating that the spring’s failure was due to an actual defect rather than another cause, such assertion rested on mere conjecture rather than on permissible inference. Meli, supra at 518. Although the Meli case involved a motion for a directed verdict rather than one for summary disposition, we find its distinction between reasonable inference and mere conjecture instructive. Plaintiffs’ failure to raise specific facts that would turn mere conjecture of a defect in the manufacture or design of the helmet into a reasonable inference does not satisfy the requirements of the court rule. See MCR 2.116(G)(4); McCart, supra. Accordingly, the trial court properly concluded that plaintiffs failed to assert the existence of any genuine issues of material fact with respect to their claim of negligent manufacture or design. See Arbelius, supra. For the same reason, plaintiffs have also failed to support their claim of breach of warranty. Affirmed.	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Memorandum Opinion. Defendant was convicted by a jury of extortion, MCLA 750.213; MSA 28.410. He was sentenced and he appeals. An examination of the record and briefs discloses no prejudicial error. Affirmed.	[ 0, 2, 12, 23, -60, -7, -12, 4, -65, 46, 15, 22, -48, 13, 14, -18, 31, -48, 40, -32, -4, -54, -12, 59, 14, -22, 11, 52, -4, -9, 11, 59, 3, -5, -7, -12, -7, 44, 52, -17, 24, 1, -4, 10, -62, -32, -15, -28, 16, -11, 32, -40, 66, -26, 0, 22, 13, -39, -55, 22, 23, -33, -22, 10, 14, -44, -7, -28, -22, 18, -13, -2, -26, -23, -24, -12, 17, 64, -12, 33, -37, -45, 25, 25, 72, -18, 34, -41, 15, 24, -1, -15, -8, -14, 2, -33, 2, -21, 13, -39, -18, -46, 0, 53, -42, 15, -39, -31, 8, 35, -8, 3, 17, -45, -67, -4, -36, 27, -12, -46, -15, 31, 35, 15, -18, -19, -10, 17, -24, -13, 0, -2, -30, 2, -21, 21, 3, 21, -19, 18, 22, -17, 31, 27, -18, -14, -2, -49, -20, -1, -40, 16, -54, 4, 59, 27, -21, -19, 3, -43, -16, -8, -10, -26, 32, -12, 5, -14, 0, -3, -4, -55, 46, 12, 18, -18, -2, 9, -16, -3, -35, 39, -47, -2, 2, 50, 6, 11, -92, -91, -45, 57, 48, -14, 2, 24, 23, 56, 1, 40, -31, -9, 11, 0, -15, -13, 6, -32, -3, -6, 29, -11, 8, -4, -17, 12, 9, -6, 1, 28, -86, -39, -8, -52, -10, -37, 11, 15, -34, 14, -11, 20, -12, 0, 27, -6, 11, -29, 18, -3, -58, 4, -12, -36, 34, -2, -1, 1, -60, -39, 35, 15, -24, 54, -18, 2, 30, -1, -69, 79, -23, 13, -15, 86, -59, 6, -5, -10, -44, -6, 24, -8, -2, 41, 32, 17, -71, -2, 31, -18, 68, 6, -26, -21, -11, -4, -14, 33, 45, -28, 37, -33, -11, 37, 87, 0, -38, 31, -42, -31, -27, -19, 1, -14, 47, -10, 58, -5, -60, -6, 42, -9, -12, -2, -5, -7, -28, 0, -3, -29, -21, 38, 35, -104, 27, -20, 50, -80, 0, -24, 2, -28, -38, 12, 16, 65, 35, 9, 2, -6, -35, 4, 34, 14, -16, 23, -29, 94, -40, 18, -22, 21, 33, 25, -28, -44, 5, 7, -21, 2, 0, -16, 12, -40, 57, 25, 17, 25, -1, 33, 43, -34, -23, 20, -19, 11, 32, -46, -10, -6, -23, 25, 34, -29, -14, -25, -26, -25, -19, -3, -48, 37, -27, -20, -41, -51, 3, -7, 18, -33, 8, -1, 55, 19, 9, -45, -26, 17, 8, 4, -27, 16, 67, 49, -23, -4, 36, 23, 27, -38, 3, 11, 9, -11, 24, -1, -3, 5, 0, -34, -12, 27, 3, -71, 34, 19, -3, -9, 29, 5, 46, 13, 0, 48, -5, -60, -6, -30, 31, -27, -10, 7, -11, 15, 1, 67, 25, -12, -13, -16, 43, 12, -25, -5, 14, -54, -23, -3, 44, -19, -15, 11, 59, 31, -12, 16, -16, -24, 8, 13, 0, 2, -26, -20, 36, -28, 0, -7, -65, -21, -39, -22, 22, -2, 7, 45, 6, 10, 10, 12, -43, 10, 7, 30, -8, 1, 30, -43, 24, 30, -30, 62, 33, 27, -53, -36, -4, -48, 8, 39, 22, -35, -12, 21, -37, 0, -31, 20, -64, 23, 29, 7, -33, -2, -34, -16, -48, -17, 32, -47, -59, -6, 7, -37, 19, 41, 0, 45, -8, -4, -17, 32, 26, 0, -24, -30, -3, 8, 12, -50, -21, -8, -1, 21, 11, 27, 1, -16, -10, -20, 53, 46, 1, 13, 1, 15, 0, 8, 3, 15, 7, 40, 0, 3, 12, -3, 52, 51, 6, -41, -3, 26, 50, -15, -14, -16, -48, -64, 73, 30, -7, 30, -37, -20, 78, -33, 21, 24, 24, -44, 51, 18, 0, 47, 24, 0, -4, -28, -23, 8, 10, -24, 49, -24, -13, -97, -12, -43, -35, 27, 21, -30, 7, -17, -26, 68, -38, 49, -16, -39, 30, 46, -28, -25, 54, -3, -2, 19, 59, 0, 3, 33, 1, -69, 19, -48, -11, 6, -18, 5, 29, 32, -39, 53, 35, 20, 28, -67, 6, -12, -18, -21, -30, -25, 38, 70, -5, -1, 37, -26, -2, -23, 12, 12, -19, -15, 17, 22, 5, 43, -34, 45, -17, 10, 6, -9, 55, 26, -39, 4, 10, -11, -15, 60, 15, 10, 24, -10, 8, 11, -21, 20, -45, 49, 2, -7, -26, -3, -72, -14, 0, -83, -11, 1, -5, -18, 33, 23, -9, 37, -8, -13, 30, 34, 11, 13, 9, -9, -15, 3, -19, -6, -6, -57, -49, 12, -4, -10, 53, 16, 38, -4, 12, 2, -2, 27, 51, 2, -25, 37, -26, 17, -16, 20, -9, 14, -6, 7, 18, -24, -16, -23, 36, 3, -72, -10, -36, 26, 17, 30, -29, 13, 12, 0, -29, -19, -53, -46, -21, 10, 27, 33, -12, 25, 11, 29, 5, 22, 11, -16, 19, -4, 2, 10, -62, 37, 10, -10, -11, 49, -9, -1, 15, -3, 49, 3, 6, -39, -44, -35, 34, 15, 10, -4, -17, -20, 22, 3, -23, -31, 60, -31, 5, 48, -68, -6, -2, 18, -41, 0, 19, -66, -6, -9, 25, -6, -26, -30, 19, -36, 96, -47, -23, -23, -9, 11, 12, 27, 5, 15, 7, 34, -43, -12, -1, 14, -9, -55, 53, -55, 36, 18, -13, -18, -3, 37, -18, 42, 6, 10, 34, 1, -16, 0, -29, -75, -36, 22, -22, 8, 18, 62, -26, 15, 4, -22, 8, -10, 39, -18, 39, 28, -3, 25, 8, -7, -4, -19, -37, 36, -9, -33, 52, 31, -11, 0, -36, 31, 27, -62, -45, 43, 20, 7, 31, -2, 27, -46, -35, -23, -32, 11, 9, -36, -60, 32, 36, -13, 52, 54, 11, -14, -21, 29, 10, -3, -57, 33, 4, -16, -30, 13, -23, 19, 16, -14, -15, 2, 4, -15, -22, 54, -36, -41, 52, 38, -16, -24, -22, -43, 54, -9, -33, -14, 40, -18, 27, -37, -20, 15, 10, -57, -25, 23, -23, -20, 29, 62, 17, -6, 75, -69, 16, 15, -4, 7, 38, -25, 18, -33, -14, -26, -9, -32, -8, 13, 22, -13, 6, -9, 38, -2, 41, -82, 12, -2, -3, -19, 32, 26, -20, 23, 27, 12 ]
Memorandum Opinion. Defendant pleaded guilty to assault with intent to rob while being armed and he appeals. A motion to affirm has been filed by the people. Upon an examination of the briefs and record, it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission. Motion to affirm is granted.	[ 65, 31, 6, 17, -29, 12, 45, 32, -12, 69, -45, -10, -46, -5, -27, -6, 49, -3, 31, -42, -17, -26, -9, 10, -13, -56, -19, 23, 10, 33, 29, 9, -24, -20, -5, -53, -16, 17, -6, 24, -1, 37, -1, 55, -53, 5, -30, -37, -58, -25, 37, 0, -1, -22, -5, 1, -29, 17, 60, 30, 14, 27, -48, 13, -49, -29, 7, -9, -12, -9, -48, 13, 14, -24, 15, 29, 21, 59, -1, 10, -28, 10, 11, 3, 24, -26, 29, -29, 8, -50, 43, -1, -17, -26, 43, 12, 8, -44, 57, -59, -62, -22, -8, 0, -11, -7, -20, -28, 77, -26, -26, -12, 10, -45, -53, -32, 38, 9, -24, -73, -6, 42, 53, 70, 16, -3, 10, -11, -33, 16, 19, 38, -6, 40, 2, -34, 9, -17, -12, 23, -20, 37, 67, -12, -2, 34, -8, -39, 16, 71, 18, 22, -64, -29, -17, 11, -8, -46, -1, 27, -37, 16, -34, -20, 13, 9, -28, -10, 11, -33, -35, -41, 81, 7, 26, 27, 7, 22, -26, 16, 8, 41, -30, 13, -26, 39, -51, 5, 32, -75, -41, 80, -6, -32, 54, 12, 7, 20, 7, -3, 0, 3, 24, -50, -30, -5, -41, -20, 34, -6, 49, 22, -67, -26, 18, -26, 18, -17, -5, 47, -80, -30, -3, 2, -7, -6, 9, 22, -56, -17, 17, 0, -29, -18, 2, 14, 0, -35, 77, -18, -48, -25, 59, -35, -2, -22, 33, 20, 24, -37, 19, 37, -22, 27, -21, -39, 51, 6, -76, 44, -39, 39, 21, 33, -72, 66, -14, 9, -60, 27, 31, 1, -4, 67, 54, 59, -73, -1, 12, -23, 13, 27, 33, 5, -60, 34, -4, 24, 49, -19, 56, -16, -3, 19, 37, -15, -24, 23, -90, -8, 70, 5, -18, -27, -19, 35, 31, -55, -22, -8, 48, 74, -21, 6, -12, 0, 46, 7, 23, -9, -50, -8, 18, -67, -5, -18, 43, -37, -1, -20, -36, -36, -15, 2, -3, 71, 16, -12, 9, 9, 30, 0, 26, -33, -30, 54, -20, 8, -17, 5, -48, -26, -19, -40, -9, -35, -30, 1, 22, 1, -7, 43, 27, -24, 58, 17, -24, -15, -21, 30, -22, -71, -8, -33, -70, -13, 37, -66, -30, -5, -25, -58, 28, -11, 43, -10, 25, -9, -10, -9, -56, -23, -6, -95, -36, 0, 12, -32, 43, -32, -12, -4, 50, -13, -20, 9, -35, -25, 45, 32, -3, 43, -2, 40, -15, -21, -26, 17, 55, -12, -23, -52, -21, -9, 28, 24, -24, 10, -3, -57, -32, 22, -5, 2, -5, 32, 2, 7, 29, -2, -6, -16, -17, 30, -34, -34, -52, 16, 30, -30, -6, -10, 24, -76, 37, 57, 23, 61, 42, -45, 36, 32, 29, -8, 53, -10, -76, -6, 43, -15, 9, 15, 0, -5, 9, 11, 5, 18, -7, 29, -4, -7, 2, -6, -17, -26, 26, -26, 33, -10, -19, 25, 39, 28, -26, 15, -49, -22, -20, -18, -51, 19, -38, -9, 32, 40, -4, 20, 49, 28, -31, 57, -36, -22, 4, -23, 12, -27, -38, 41, 23, -29, 13, 25, -21, 5, -17, -23, -54, 10, 46, -63, -23, 3, 14, 32, -38, -9, 41, 26, -20, -2, 6, -18, 0, 15, 0, 37, 33, 36, -20, 38, 4, 55, -32, -16, -2, -9, -6, -36, 5, 0, 37, 47, -27, -21, -21, -10, 0, -9, 24, -13, -21, 15, -15, -35, 21, 23, 40, 0, 23, 47, -43, 44, 6, -29, 34, -12, -9, -37, -66, 34, 48, -48, -77, -28, -22, 0, 19, 25, 14, 25, -43, -11, 40, 13, 24, 11, -28, -77, 56, -41, 3, 43, -16, -4, -8, 18, -29, 2, -14, -12, 34, 4, -22, -81, -25, 12, 24, 9, -7, -22, -19, -14, -55, 60, -48, 42, -45, -20, 2, 76, -29, -23, 41, -9, -41, 7, 8, 17, 5, 28, -12, -34, 14, -16, 4, 89, -17, -16, 12, 34, -28, -11, 29, 29, 0, -33, 64, 18, -9, 8, -22, -6, 44, 60, 25, 27, 10, 6, -15, -30, 11, 2, -21, -32, 65, 6, -26, -9, -13, 45, 46, -31, 10, -9, 57, 37, -30, 61, 22, -13, 7, 3, 44, -51, -9, 4, -24, 28, -31, 6, -19, 60, -3, -59, -73, -52, 16, -2, -11, 23, 25, 2, -5, 23, 17, 4, 77, 12, 10, -66, 41, 7, 11, 19, 12, -4, 70, -17, -4, -7, -11, -45, -3, 17, -19, 30, 25, -24, 68, -63, 5, 24, 3, 44, 48, -83, 3, 43, -23, -1, -28, -3, -37, 9, -36, 43, 8, 17, -27, 2, 11, 11, -75, 1, 1, -67, 85, 40, -24, -34, -2, -12, -5, -35, -67, -72, -48, -65, 8, 43, -70, 47, 43, 44, 37, -4, 13, 14, -43, -37, 16, 3, 1, -15, -11, 59, -4, 10, 31, -19, -54, -35, -3, -18, 61, -16, 6, -55, 4, 45, 9, -11, 19, 22, 27, -35, -9, -45, 3, -38, -16, 28, -33, -22, 38, -47, 33, 25, -19, 5, 23, 1, 33, 4, -4, -25, 42, -10, 75, -33, -46, -26, -1, -9, 0, 43, -12, -69, 37, 50, -26, -8, -9, -11, -10, -54, 5, -4, 20, -14, -3, 20, 29, 6, -47, -18, -48, 24, 20, -19, 24, 5, 13, -45, -3, -29, -40, -26, 27, 26, -29, 29, 5, 4, 37, -6, -10, 28, 21, 10, 8, 43, 66, -12, 52, 31, -5, 22, 9, 18, 87, -15, -6, 16, -5, -62, -9, 22, -2, 38, 68, 18, 27, -37, -5, 12, 1, -31, 9, 43, 30, -68, -13, 3, 33, -58, 17, 42, -22, -3, -70, 4, 1, -34, -52, 3, -45, -34, -15, -15, -70, -15, 50, -54, 52, 42, -66, -2, 21, 36, -59, -43, 34, 17, 3, -3, 8, 19, 23, -10, -48, 11, 18, 12, -4, -53, -8, 26, 26, -54, -17, -45, 3, 27, 0, 45, 25, -32, 31, -3, -7, -4, -32, 14, 18, -33, -7, -17, -39, 21, 18, 2, -6, 7, -13, 30, -54, 21, -6, 1, 21, 31, 12, -10, -32, -20, 50, 38, -28, -24, 1, 21 ]
Quinn, P. J. This action was submitted to the trial court for decision on stipulated facts, stipulated issues, and briefs. Plaintiff had judgment and defendant Wonderland Realty Corporation appeals. The facts stipulated are: “1. On July 29, 1965, at Fort Wayne, Indiana, Floren Klopfenstein, as lessee, and A. H. Heine Implement Company, as lessor, executed a certain ‘equipment lease’ a copy of which is attached hereto as Exhibit 1. The subject of said lease was two (2) John Deere 5010 scrapers (which is a large tractor with a built-on scraper blade) and two other items of earth moving equipment. At the time of the execution of the lease the equipment was located in Fort Wayne, Indiana, and shortly thereafter it was delivered by lessor to lessee at Paulding, Ohio. “2. On August 5,1965, the said lease was assigned to plaintiff, John Deere Company. Neither A. H. Heine Implement Company nor John Deere Company knew or consented to the later removal of said equipment to Michigan. The lease agreement was never the subject of a filing or recording in any state. “3. On September 12, 1967, defendant, Wonderland Realty Corporation, as a judgment creditor of Floren Klopfenstein (Ingham County Circuit Civil Action No. 6400-C) executed and levied against the two John Deere 5010 scrapers and the John Deere 1010 back hoe, which equipment was. then in the possession of Floren Klopfenstein in Hillsdale County, Michigan. “4. The instant action was brought by the plaintiff to forestall sale of said equipment pursuant to defendant Wonderland’s levy of execution and to determine the respective priority of the parties’ interests in said agreement. By agreement of the parties, the equipment was valued at sixteen thousand five hundred ($16,500) dollars, which figure is substituted herein for said equipment. The agreement of the parties with respect to sale and substitution and the terms of judgment to be rendered herein is attached hereto and made a part hereof as Exhibit 2.” (A copy of the “equipment lease” is attached hereto.) The first stipulated issue was: “Does the ‘equipment lease’ constitute a ‘security agreement’ under the law applicable to it?” On the basis of a finding that the instrument involved was a lease, and not a security agreement, the trial court decided for plaintiff. We reverse because in our opinion the instrument was a security agreement. MCLA 440.1201(37); MSA 19.1201(37) provides: “ ‘Security interest’ means an, interest in personal property or fixtures which secures payment or performance of an obligation. * * # Unless a lease or consignment is intended as security, reservation of title thereunder is not a ‘security interest’ but a consignment is in any event subject to the provisions on consignment sales (section 2326). Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” We refer to the “equipment lease” as the agreement. Neither its label nor its form determines what the agreement is. That determination results from an examination of the entire instrument and the ascertainment of its intent and the rights created by it. For a term of 36 months, the so-called lessee was required to pay what is termed rental of $60,592.68, payable $5,049.39 at three month intervals or $20,-197.56 annually (paragraph 1 of the agreement). The lessee could extend the term for succeeding 12 month periods at an annual rental of $1,211.85 (paragraph 3 of the agreement). At the end of the term, lessee had an option to sell the equipment as provided in paragraph 8 of the agreement with final settlement to be made as provided in paragraph 9 of the agreement (paragraph 4 of the agreement). An examination of paragraphs 8 and 9 establishes that any proceeds of sale in excess of the present value of the payments provided in paragraph 1 and remaining unpaid went to the lessee. At a sale, lessee could bid as high as was necessary to become the successful bidder and never pay more than he was obligated to pay under paragraph 1 of the agreement. On termination by the lessee under paragraph 8 of the agreement, the same result is reached, namely: the lessee pays the present value of unpaid payments required by paragraph 1. In the event of default by lessee, he agrees to surrender possession of the equipment to lessor. The latter may accept the equipment in final settlement or sell it and hold lessee for any deficiency of the amount due under paragraph 1 (paragraph 10 of the agreement). All of the foregoing analyses connote a security interest retained by lessor to secure payment, of lessee’s obligation under the agreement. On compliance with the terms of the agreement, it permits lessee to become the owner of the equipment for no additional consideration. The agreement was a security agreement and not a lease. Because of its decision on the first issue, the trial court never reached the remaining issues. We decline to consider them before the trial court has decided them. Reversed and remanded with costs to defendant Wonderland Realty. All concurred. APPENDIX EQUIPMENT LEASE LESSOR: LESSEE: A. H. Heine Imp. Co. Floren Klopfenstein (Name) (Name) Ft. Wayne, Ind. Paulding, Ohio, RR #2 (Mailing Address) (Mailing Address) (City) (State or Province) (City) (State or Province) DESCRIPTION OE UNITS (Give Serial No,) 1 John Deere Model 5010 Scraper #37T6864 1 John Deere Model 5010 Scraper #373R008227 1 John Deere Model 1010 Wheel loader #56786 1 John Deere Model 92 Backhoe #422 1. TERM; RENTAL Lessor hereby leases the above units to Lessee for a term of 36 months from the date of this lease. A rental payment of $5049.39, shall be made at the beginning of each 3 month portion of the above stated term for a total of 12 rental payments. Advance rentals of $5049.39, receipt whereof is hereby acknowledged, shall be applied to the first rental period and any excess applied to the last rental period(s). 2. ASSIGNMENT BY LESSOR Lessee agrees that Lessor may assign this lease and all right, title and interest of Lessor in and to the units and all rents due or to become due hereunder, of which assignment Lessee hereby waives notice. Lessee’s obligation to pay rent under this lease shall not as to any such assignee be subject to any diminution arising out of any breach of any obligation hereunder or other liability of Lessor to Lessee. The Lessor, or an assignee claiming under him as the case may be, is sometimes referred to herein as the “Owner.” Lessee will not sublease units or assign any of his rights hereunder. 3. RENEWAL OR EXTENSION If Lessee is not in default in performance of any of its obligations hereunder, Lessee may by thirty days’ written notice to the Owner prior to the expiration hereof, or any renewed or extended period, elect to renew or extend this lease for succeeding twelve month periods, provided, however, that Lessee shall pay to the Owner for each such renewal an annual rental in advance equaling 2% of the aggregate rentals otherwise payable hereunder, and all the provisions of this lease shall apply, except as otherwise specifically provided herein or in any subsequent agreement of the parties. 4. EXPIRATION OF TERM; RETURN OF UNITS At the expiration of the term of the lease or any renewal thereof without further renewal, Lessee shall return all units to the Owner at a place designated by the Owner no more than fifty miles from the place where the units were originally leased. It is provided, however, that Lessee in lieu of returning any unit may, by written notice to Owner, eleet that the unit shall be sold as provided in Section 8 and final settlement made as provided in Section 9. 5. WARRANTY Except as provided below, Lessor will replace parts which prove defective within six months of the date of this lease with normal and proper use provided Lessee delivers the unit to Lessor’s service shop or reimburses Lessor for travel or transportation expense. Except as provided below as to agricultural shovels and sweeps, Lessor makes no other warranty or representation and has no other obligation with respect to the units, their. condition, merchantability, or performance. Lessee agrees that the units are of a size, design and capacity selected by him, and ft satisfied that the units are suitable for his purpose. Lessor has no obligation of any kind as to batteries and rubber tires and non-John Deere goods, as to all of which Lessee agrees to look solely to the written warranty, if any, undertaken by the manufacturer thereof which is hereby assigned by Lessor _ to Lessee. Lessor undertakes no warranty or obligation of any kind as to second-hand goods. Lessor guarantees John Deere agricultural shovels and sweeps against breakage of any kind when such breakage occurs before any appreciable wear takes place. 6. INSURANCE Lessee at its own expense will carry public liability insurance in amounts satisfactory to the Owner against bodily injury, including death, and against property damage, and will keep the units insured at its full insurable value under standard inland marine “all risk” type physical damage policy with maximum deduetibility of $50, all with companies satisfactory to Owner. Lessee shall deliver to the Owner the insurance policies or certificates or other evidence satisfactory to the Owner of the maintenance of the above insurance. All insurance shall contain an agreement of the insuring company not to cancel the same without at least ten days’ notice to the Owner. 7. LOSS OR DAMAGE TO UNITS All risk of loss or damage to the units is assumed by Lessee until their return to the Owner at the expiration of the lease or renewal thereof, or until final settlement has been made pursuant to Section 9. If a damaged unit is capable of being repaired, Lessee shall repair it at his cost and may apply insurance proceeds for this purpose, but inadequacy of such proceeds to cover the cost does not excuse or diminish Lessee’s obligation to repair. If a unit is damaged beyond repair, insurance proceeds shall be paid over to the Owner and the wreckage sold pursuant to Section 8 below. 8. TERMINATION OF LEASE; SALE OF UNITS At any time after the first twelve months of the lease term, Lessee may by written notice to the Owner terminate this lease with re spect to any unit. In such event, or in the event of damage to the unit beyond repair under Section 7 above, Lessee shall promply arrange to sell the unit by bona fide sale in the open market. Such sale is subject to prior written approval of the Owner and all proceeds of such sale after deduction of expenses incurred by Lessee in connection therewith shall be delivered to the Owner. At its option the Owner may elect to take possession of the unit and handle the sale itself. 9. FINAL SETTLEMENT Upon receipt by the Owner of the proceeds of any unit sold pursuant to Section 8 or 10 or the proceeds of any insurance pursuant to Section 7, the Owner will adjust the rental payable hereunder by returning to Lessee the amount by which such proceeds exceed the present value of rentals provided for in Section 1 remaining unpaid plus any obligation of Lessee under Section 12 hereof. The present value of future due rental will be computed on the basis of discount rates taken from the John Deere Finance Chart. If such proceeds are less than such present value of rentals, plus such obligation, Lessee shall pay such difference promptly on demand. 10. DEFAULT If Lessee shall fail to make any rental payment when due, shall attempt to sell or encumber the units, shall cease operating, shall institute or have instituted against him proceedings under any bankruptcy or insolvency law, shall make an assignment for the benefit of creditors, or shall fail to comply with any other provision of this lease, or if any attachment, execution, writ, etc., or other process is levied against the units or any of Lessee’s property, or if for any reason the Owner deems itself unsafe, Lessee agrees to surrender possession of the units on demand. The Owner may treat possession of the units as final settlement under this lease, retaining all rental payments theretofor made, or at its option, the Owner may sell the units and make final settlement according to the terms of Section 9. It is provided however, that the expenses of repossession and sale, including reasonable attorneys’ fees, shall be added to the obligations of Lessee hereunder for purpose of final settlement. 11. CONSTRUCTION This agreement is, and is intended to be, a lease, and nothing herein shall be construed as conveying to Lessee any right, title or interest in the units or their proceeds except as Lessee. 12. LIABILITY Lessee assumes all risk and liability for and shall hold the Lessor and its assigns harmless from all claims, liabilities or expenses for injuries or death to persons or loss or damage to property allegedly caused by any unit or arising out of the use, possession or transportation thereof. 13. SERVICE AND USE Lessee agrees to care for the units in a careful and prudent manner and to make at his expense any and all repairs which may be necessary to keep the units in as good condition as they are now, reasonable use and wear thereof, excepted. Lessee shall comply with and conform- to all laws and regulations relating to ownership, possession, use and maintenance of the units, and with all conditions of policies of insurance on the units. Lessee shall pay when due all taxes, license fees and charges of any kind that may be assessed or charged against the units or the use thereof. Lessee will not without written consent of the Owner install any accessory or device on any unit if such installation will impair the originally intended function or use of the unit. All parts or devices affixed to any unit shall automatically become the property of the Owner (except such as may .be removed without .in any way affecting the originally intended function or use of the unit). A. H. Heine Imp. Co. Floren Klopfenstein LESSOB LESSEE A. H. Heine Ifnp. Co. Floren Klopfenstein BY BY July 29, 1965 (DATE) Appendix.—Reporter. We note that at the time of levy by defendant the parties valued three pieces of equipment at $16,500, a figure which appears to be the present value of the unpaid payments under the agreement for three pieces of equipment.	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Shepherd, J. Respondent, the State Tax Commission, appeals as of right a December 28, 1990, decision by the Kent Circuit Court reversing the commission’s denial of petitioner’s application for an industrial facilities exemption certificate pursuant to the rehabilitation and industrial development districts act, 1974 PA 198, MCL 207.551 et seq.; MSA 7.800(1) et seq._ Petitioner, Great Lakes Sales, Inc., is engaged in the general business of wholesale distribution of vinyl and carpet floor coverings. In November 1987, petitioner filed an application for an industrial facilities exemption certificate with the City of Wyoming for a 14,480-square-foot addition to an existing building. The existing building had previously been granted an exemption by Kent Circuit Court Judge Roman Snow in 1979. After the City of Wyoming had granted its approval on February 1, 1988, the application was sent to the respondent commission for final approval. In August 1988, the commission notified petitioner that it was denying petitioner’s application on the ground that the property did not satisfy the definitional requirements of 1974 PA 198, MCL 207.551 et seq.; MSA 7.800(1) et seq. (the rehabilitation and industrial development districts act). Petitioner then requested a hearing before the commission. After a hearing on November 29, 1988, the commission issued an order denying petitioner’s application for an industrial facilities exemption certificate. Subsequently, petitioner requested a rehearing because the commission failed to provide any findings of fact or conclusions of law as required under MCL 24.285; MSA 3.560(185). On March 7, 1989, the commission issued another order denying petitioner’s application. Petitioner submitted a second request for rehearing, and another hearing was held on October 24, 1989. On December 11, 1989, the commission issued its findings of fact, conclusions of law, and an opinion denying petitioner’s application. Subsequently, petitioner sought judicial review in the Kent Circuit Court. On December 28, 1990, the court reversed the commission’s denial of petitioner’s application and found that petitioner was entitled to the industrial facilities exemption certificate because its property qualified as "industrial property” under § 2(6) of 1974 PA 198. The rehabilitation and industrial development districts act was adopted by the Legislature to provide qualifying facilities an exemption from, or abatement of, ad valorem real and personal property taxes under the General Property Tax Act, 1893 PA 206, MCL 211.1 et seq.; MSA 7.1 et seq. In general, such facilities must create, maintain, or prevent loss of employment and must primarily restore, replace, or update the technology of obsolete industrial property. MCL 207.559(2); MSA 7.800(9)(2); Murco, Inc v Dep’t of Treasury, 144 Mich App 777, 779; 376 NW2d 188 (1985). For a "new facility,” a specific tax called the "industrial facility tax” is imposed, which equals fifty percent of what the facility’s tax would be under the general property tax. MCL 207.564(2); MSA 7.800(14)(2). A "new facility” is defined in § 2(4) of 1974 PA 198, MCL 207.552(4); MSA 7.800(2)(4), as new industrial property other than a replacement facility to be built in a plant rehabilitation district or industrial development district. In this case, petitioner sought an exemption for property valued at approximately $850,000 in 1988. Since the adoption of the act, "industrial property” has been defined in § 2(6) of 1974 PA 198, MCL 207.552(6); MSA 7.800(2)(6), as follows: "Industrial property” means land improvements, buildings, structures, and other real property, and machinery, equipment, furniture, and fixtures or any part or accessory thereof whether completed or in the process of construction comprising an integrated whole, the primary purpose and use of which is the manufacture of goods or materials or the processing of goods and materials by physical or chemical change .... Industrial property shall include facilities related to a manufacturing operation under the same ownership, including but not limited to office, engineering, research and development, warehousing, or parts distribution facilities. In 1982, the act was amended by 1982 PA 417, which added § 2(10) to define the phrases "manufacture of goods or materials” and "processing of goods or materials”: "Manufacture of goods or materials” or "processing of goods or materials” means any type of operation that would be conducted by an entity included in the classifications provided by division D, manufacturing, of the standard classification manual of 1972, published by the United States office of management and budget, regardless of whether the entity conducting such an operation is included therein. The first question presented in this case involves the interpretation of the statute providing an exemption for qualified property. Respondent contends that petitioner failed to qualify for the exemption under 1974 PA 198 because the facility must be used primarily for the manufacture of goods or materials. Petitioner argues that the new facility qualifies as industrial property entitled to an exemption because it comprises an integrated whole whose primary purpose and use, as set forth in § 2(6), involves the type of operation that falls within the definition of "manufacture of goods or materials” or "processing of goods or materials” under § 2(10) of the act. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. William Mueller & Sons, Inc v Dep’t of Treasury, 189 Mich App 570, 572; 473 NW2d 783 (1991). Where the meaning of a statute is clear and unambiguous, judicial construction or interpretation is precluded. People v Willie Miller, 186 Mich App 238, 241; 463 NW2d 250 (1990). When ascertaining legislative intent, the language of the statute should be given a reasonable construction, considering the statute’s purpose and the object sought to be accomplished. Id. Unless defined in the statute, every word or phrase should be accorded its plain and ordinary meaning. MCL 8.3a; MSA 2.212(1); People v Tracy, 186 Mich App 171, 176; 463 NW2d 457 (1990). Tax exemption statutes are to be strictly construed in favor of the taxing unit. Mueller, supra. Courts are to give deference to an administrative agency’s interpretation of a statute it is entrusted to enforce. Bar Processing Corp v State Tax Comm, 171 Mich App 472, 478; 430 NW2d 753 (1988). Under 1974 PA 198, as amended, a facility qualifies as industrial property under §2(6) if it comprises an "integrated whole, the primary purpose and use of which is the manufacture of goods or materials or the processing of goods and materials by physical or chemical change.” Section 2(10) defines "manufacture of goods or materials” and "processing of goods or materials” to mean "any type of operation that would be conducted by an entity included in the classifications provided by division D . . . regardless of whether the entity conducting such an operation is included therein.” Accordingly, the manufacture of goods or materials or processing of goods or materials, as defined in § 2(6), includes any type of operation that would be conducted by an entity classified as a manufacturer under division D of the Standard Classification Manual, regardless of whether the entity performing the operation is classified as a manufacturer under division D. The terms "the primary purpose and use” and "by physical or chemical change” as used in § 2(6) are not defined by the statute, and thus must be accorded their ordinary and customary meaning. Tracy, supra. Webster’s Seventh New Collegiate Dictionary (1967) (based on Webster’s Third New International Dictionary) defines "primary” as "of first rank, importance, or value.” Webster’s Third New International Dictionary Unabridged Edition (1964) defines "change” as: to make different in some particular but short of conversion into something else ... to become different in one or more respects without becoming something else. Webster’s Seventh New Collegiate Dictionary adds that change implies making either an essential difference often amounting to a loss of original identity or a substitution of one thing for another; . . . change may imply any variation whatever whether affecting a thing essentially or superficially. We note that in rendering its December 11, 1989, opinion, the commission committed several errors in interpreting the relevant statutory provisions. In its findings of fact, the commission found that 1974 PA 198 was amended by adding § 2(10) "requiring that the entity would be included in the classifications provided by division D, Manufacturing, of the Standard Classification Manual of 1972.” In its conclusions of law and opinion, the commission stated: The Commission concluded that the amendment to 1974 PA 198 which added section 2(10) requires that the facility must be engaged in manufacturing instead of only causing a physical or chemical change to a product. Contrary to respondent’s construal, the plain language of § 2(10) does not require that the entity conducting the operation must be classified as a manufacturer under division D of the Standard Classification Manual. Rather, § 2(10) focuses on the type of operation conducted by an entity that would be included in the classifications provided by division D, manufacturing, regardless of whether the entity is a manufacturer. Moreover, §2(10), by its plain language, includes the "processing of goods or materials,” which, under § 2(6), is "by physical or chemical change.” Thus, § 2(10) is not limited to operations that manufacture goods or materials, but includes any type of operation that would be performed by a manufacturer under the Standard Classification Manual. In this case, it is undisputed that the operations conducted in petitioner’s new facility include types of operations that would be conducted by an entity included in the classifications under division D. Petitioner’s operations involving the cutting of large rolls of carpet and vinyl are identical to the final steps in the manufacturing process occurring in carpet and vinyl mills. The Standard Industrial Classifications Codes describing petitioner’s new facility were 2279 (i.e., establishments primarily engaged in the manufacture of carpets and rugs) and 3396 (i.e., establishments primarily engaged in the manufacture of vinyl). Both codes describing petitioner’s operations are included in division D, manufacturing. (Note: Code 2279 is now classified under code 2273.) Thus, even though petitioner is classified under code 5023 (i.e., establishments primarily engaged in the wholesale distribution of home furnishings and housewares including carpets, linoleum, and all other types of hard and soft floor coverings), the operations occurring in petitioner’s new facility are the types that would be conducted by an entity included in the classifications provided by division D, manufacturing, as required by § 2(10) of the act. Having decided that §2(10) of the statute does not require the entity or the facility to be engaged in manufacturing and that petitioner satisfies the definitional requirements of §2(10), because the operations occurring within its new facility are types of operations that would be conducted by an entity classified as a manufacturer by the Standard Classification Manual, the question then becomes whether the processing of goods or materials in petitioner’s new facility satisfies the definition of "industrial property” under § 2(6) of the act. In denying petitioner’s application for an exemption, the commission stated: It is the opinion of the State Tax Commission that the primary purpose of the facility is not manufacturing but is warehousing and distribution of carpet and floor covering. It is further the opinion of the State Tax Commission that the operation of carpet or vinyl sheet cutting is not manufacturing when it is an isolated operation and therefore the sales display area, floor covering storage and offices are not qualified as manufacturing within its understanding of section 2(10) of 1974 PA 198. Section 106 of the Administrative Procedures Act, MCL 24.306; MSA 3.560(206), provides the scope of judicial review in this matter: (1) Except when a statute or the constitution provides for a different scope of review, the 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 any of the following: (a) In violation of the constitution or a statute. (d) Not supported by competent, material and substantial evidence on the whole record. (f) Affected by other substantial and material error of law. (2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings. When reviewing whether an agency’s decision was supported by competent, material, and substantial evidence on the whole record, a court must review the entire record and not just the portions supporting an agency’s findings. West Ottawa Ed Ass’n v West Ottawa Public Schools Bd of Ed, 126 Mich App 306, 313; 337 NW2d 533 (1983). "Substantial evidence” has been defined as that which a reasonable mind would accept as adequate to support a conclusion. Consumers Power Co v Public Service Comm, 189 Mich App 151, 187; 472 NW2d 77 (1991). Substantial evidence consists of more than a scintilla of evidence, but less than a preponderance of the evidence. Id. As noted above, to qualify as industrial property under § 2(6), the facility must comprise an "integrated whole, the primary purpose and use of which is the manufacture of goods or materials or the processing of goods and materials by physical or chemical change.” In this case, petitioner’s new facility is used to store, cut, and process floor covering materials in an integrated operation. In both facilities, petitioner stores ceramic tiles, vinyl, carpet, carpet pads, and wood flooring. Carpet and sheet vinyl come in large, bulky rolls that must be processed by physical change (i.e., cut to size) in order to be sold to retailers. Although petitioner is classified as a wholesaler, the operation in the new building is similar to the final manufacturing steps taken by carpet mills and vinyl floor manufacturers. As with the mills and vinyl floor manufacturers, petitioner uses a cutting machine that occupies a small part of the new facility. Petitioner, like the manufacturers, must store or warehouse materials on storage racks. The storage and warehousing of the materials is incidental to the processing stage, because petitioner must process the floor covering materials to conduct its wholesale business. Thus, determining whether petitioner’s new facility satisfies the definition of industrial property under § 2(6) turns on whether its primary purpose and use involves the processing of goods or materials by physical change. In this case, a review of the entire record, which covers only two of the hearings before the commission reveals that the overwhelming majority of petitioner’s products are subject to processing in the new facility. There, approximately ninety percent of the vinyl and sixty-six to eighty-five percent of the carpet is cut. In addition, forty to sixty percent of the wood flooring is broken down into smaller components, as is sixty to seventy percent of the ceramic tiles. The only items stored by petitioner that are not cut or disassembled are the carpet pads. Respondent argues that the primary purpose and use of petitioner’s new facility is not manufacturing, but rather the wholesale distribution of vinyl and carpet floor coverings manufactured by others. Respondent concludes that the new facility is primarily for storage because only about 3,200 square feet, or approximately twenty-two percent of the total area of the new facility, is devoted to the processing operations. The record indicates that the cutting machine that is used to cut the vinyl and the carpet occupies about 1,000 square feet or about five percent of the new facility. In addition, a space of approximately 800 to 1,000 square feet is set aside for manually cutting fifteen-foot-wide carpets and grass carpets that cannot be cut on the machine. Further* defendant’s employees break down about fifty percent of the shipments containing ceramic tile for the purpose of preparing sample boards in an area of approximately 1,200 square feet. Aisles and racks occupy about fifty percent of the new facility. Contrary to respondent’s claims, we do not believe that floor space utilization is controlling with regard to this issue. As previously observed, the statute leaves "primary purpose and use” undefined. Moreover, § 2(6) specifically allows that "[industrial property shall include facilities related to a manufacturing operation . . . including but not limited to . . . warehousing, or parts distribution facilities.” The mere fact that most of the petitioner’s new facility is not occupied by machinery or employees involved in the processing of goods or materials is not dispositive. The goods processed and sold by petitioner are bulky and require considerable space for storage. For this reason, the percentages of goods that are processed are of greater relevance in determining the primary use of the facility. Thus, the record suggests that the commission’s decision was not supported by substantial evidence, given that the primary purpose and use of the new facility appears to be the processing of goods or materials by physical change. Consumers Power Co, supra. Throughout this opinion, we have emphasized the primary purpose of the operations at the new facility rather than the primary purpose of petitioner’s entire business. This is the only reasonable interpretation of the present statutory scheme, which refers to the "land improvements, buildings, structures ... or any part or accessory thereof. . . the primary purpose and use of which is the . . . processing of goods and materials by physical or chemical change.” MCL 207.552(6); MSA 7.800(2X6). We therefore hold that a nonmanufacturer who constructs a new facility that has as its primary purpose and use the processing of goods may qualify for the tax exemption with regard to that new facility. We affirm the decision of the Kent Circuit Court reversing the commission’s decision denying petitioner’s application for an industrial facilities exemption certificate.	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Quinn, J. In a non jury trial, plaintiff widow recovered judgment in this wrongful death action, MCLA 600.2922 et seq; MSA 27A.2922 et seq. Defendant appeals. The issue presented by the appeal is, Is an insane person civilly responsible for his torts? Research fails to disclose any Michigan authority on this question. About 8 a.m. July 22, 1968, Benjamin A. BarylsM went to defendant’s home to borrow a wrench. Defendant shot BarylsM, who died shortly thereafter. Soon after his arrest, defendant stated to a deputy sheriff “That he had shot the man”. Defendant also told the sheriff, “Somebody had been by his door that morning and he also stated they had been after him. He said somebody is trying to get me. He said they had been around the house all night.” Defendant was charged with murder. A preliminary psychiatric examination revealed that defendant was incompetent to stand trial, and he was committed to the Department of Mental Health by reason of his insanity pursuant to MCLA 767.27a et seq; MSA 28.966(11) et seq. In his answer to plaintiff’-s complaint, defendant pleaded: “That at the time of the alleged occurrence the defendant was not of sound mind and was without Miowledge as to the presence of the plaintiff and was unaware that the plaintiff was on the premises”, as an affirmative defense. The trial court held: “The great weight of authority is that an insane person is civilly liable for his torts although he does have the right as in this case to have a defense made for him by a guardian to ascertain if he did commit the tortious act.” TMs was a correct holding, see 51 ALR 833, 89 ALR 476, 77 ALR2d 625, 39 Penn BAQ 73 (1967), and 4 Restatement Torts, § 887, Comment a, p 468. The applicable rule is well stated in Williams v Hays, 143 NY 442, 446-447; 38 NE 449-50 (1894): “The general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander and malicious prosecution. In all other torts, intention is not an ingredient, and the actor is responsible although he acted with a good, and even laudable purpose, without any malice. The law looks to the person damaged by another and seeks to make him whole, without reference to the purpose or condition, mental or physical, of the person causing the damage. The liability of a lunatic for his torts, in the opinions of judges, has been placed upon several grounds. The rule has been invoked that, where one of two innocent persons must bear a loss, he must bear it whose act caused it. It is said that public policy requires the enforcement of the liability, that the relatives of a lunatic may be under inducement to restrain him, and that tort feasors may not simulate or pretend insanity to defend their wrongful acts, causing damages to others. The lunatic must bear, the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.” In a wrongful death action, the act of the defendant upon which his liability is asserted does not require a specific intent that might be negated by insanity, Roberts v Hayes, 284 Ill App 275; 1 NE2d 711 (1936). Affirmed with costs to plaintiff. All concurred.	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Memorandum Opinion. Defendant was convicted of assault with intent to rob while armed, and appeals. The people have filed a motion to affirm. Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm granted.	[ 56, 36, 10, 24, -24, 5, 51, 32, -22, 68, -37, 1, -33, 6, -15, 9, 40, -1, 37, -39, -20, -21, 0, 28, -12, -57, -21, 33, 10, 49, 37, 2, -26, -15, -8, -49, 0, 18, 0, 28, -4, 50, -3, 56, -61, 0, -22, -24, -63, -34, 32, -1, 0, -29, -13, -10, -26, 7, 54, 37, 11, 27, -31, 13, -46, -17, -1, -17, -23, -5, -54, 20, -19, -31, -1, 12, 20, 50, 12, -1, -12, 3, 6, 13, 19, -21, 25, -33, 14, -52, 39, -6, -36, -35, 32, 18, 10, -54, 66, -42, -61, -10, 0, -6, -20, -3, -23, -28, 78, -31, -28, -13, 7, -26, -63, -36, 34, 28, -14, -65, -9, 27, 43, 43, 6, -12, 7, -6, -20, 22, 26, 42, -2, 45, -11, -31, 19, -10, -6, 13, -16, 35, 65, -22, -1, 48, 7, -46, 9, 66, 17, 10, -58, -9, -9, 13, -19, -38, -5, 26, -27, 21, -25, -16, 20, 9, -23, -22, 22, -24, -36, -21, 79, -3, 20, 40, -3, 31, -10, 21, 2, 50, -16, 13, -24, 39, -73, 7, 36, -69, -45, 81, 5, -22, 47, 12, 24, 22, 2, 1, -1, 6, 26, -49, -32, 1, -36, -5, 29, -13, 54, 31, -67, -26, 22, -38, 17, -13, -11, 31, -87, -30, -2, -15, -5, -6, 2, 22, -67, -32, 14, 8, -46, -25, 9, 17, 2, -19, 72, -27, -39, -5, 40, -44, -2, -29, 26, 26, 46, -35, 20, 23, -21, 29, -21, -52, 41, 2, -68, 46, -27, 51, 25, 43, -64, 52, 0, 5, -54, 43, 43, -17, -18, 53, 55, 45, -67, -3, 17, -39, 24, 32, 32, 7, -67, 19, 15, 2, 44, -10, 49, -22, 0, 24, 29, -14, -18, 21, -69, 0, 62, -5, -13, -17, -26, 29, 22, -59, -21, -25, 56, 97, -18, -17, -7, 0, 34, 8, 14, -21, -43, -2, 23, -71, 6, -33, 38, -40, -12, -15, -33, -44, -17, -1, -6, 62, 11, 3, 17, -1, 17, -6, 17, -38, -28, 51, -37, 1, -14, 1, -39, -21, -17, -36, -7, -29, -35, -7, 17, 9, -16, 41, 38, -26, 64, 39, -29, -16, -18, 18, -29, -77, -8, -34, -72, -5, 47, -67, -31, -7, -28, -41, 49, 0, 34, 0, 13, -14, 1, -14, -50, -29, -4, -76, -52, -8, 0, -25, 41, -35, -37, 12, 38, -2, -22, 10, -27, -18, 45, 42, -4, 39, 1, 32, -10, 0, -22, 17, 47, -25, -32, -48, -22, -11, 10, 28, -38, 12, 1, -49, -45, 19, -9, 6, -20, 25, 12, -11, 30, -7, -16, -24, -12, 29, -34, -45, -41, 7, 32, -28, -9, -24, 29, -72, 29, 55, 31, 47, 31, -36, 21, 21, 12, 5, 52, 11, -94, -21, 45, -16, -4, 16, -3, -4, -1, 7, 4, 22, 5, 24, -8, 0, 15, 10, -11, -27, 35, -23, 21, -10, -24, 8, 61, 16, -38, 11, -58, -17, -16, -30, -44, 33, -33, -2, 21, 29, 2, 13, 35, 29, -22, 55, -40, -17, -19, -34, 19, -28, -37, 34, 19, -32, 17, 32, -13, -2, 0, -23, -52, 4, 59, -55, -27, 16, 14, 46, -40, -11, 36, 17, -17, -10, 15, -38, 14, 1, 14, 37, 37, 37, -28, 28, 11, 58, -10, -33, -6, -13, 0, -41, -1, 1, 23, 52, -26, -24, -17, -6, 4, -31, 21, -10, -33, 1, -17, -30, 27, 15, 42, 3, 34, 42, -59, 47, -6, -39, 45, -16, -11, -31, -56, 7, 46, -48, -88, -18, -31, -9, 22, 26, 0, 31, -28, -19, 28, 13, 19, 4, -21, -70, 58, -44, -10, 41, -26, 2, -11, 26, -29, 9, -5, -18, 33, 11, -30, -85, -19, -5, 36, 5, -4, -39, -15, -14, -42, 57, -41, 30, -33, -1, 4, 79, -12, -15, 44, -9, -25, 6, 6, 12, -6, 33, 4, -38, 17, 0, 5, 79, -11, -22, 5, 38, -33, 10, 42, 38, 0, -20, 44, 30, 9, 13, -31, 2, 42, 49, 48, 4, 10, 6, -16, -28, 6, 24, -15, -26, 68, -4, -15, -13, -8, 49, 42, -27, -3, -17, 49, 35, -28, 50, 16, -24, 0, 5, 30, -47, -12, 3, -19, 24, -35, 11, -28, 56, 5, -40, -60, -55, 19, -3, -15, 25, 17, 12, -3, 43, 30, 23, 68, -6, 9, -48, 33, 6, 16, 13, 20, 0, 51, -32, 8, -13, 0, -31, -6, 11, -25, 9, 5, -8, 58, -68, -5, 15, -19, 44, 55, -80, 0, 39, -15, -26, -22, 0, -44, -9, -41, 40, 12, 15, -28, 2, 10, 2, -71, 7, 3, -54, 71, 38, -35, -31, 4, -12, 8, -48, -64, -77, -53, -49, 18, 41, -66, 52, 48, 44, 57, -7, 9, 18, -32, -20, 26, 10, 5, 1, -11, 50, 3, 13, 39, -31, -46, -27, -14, -6, 42, -14, 11, -57, 1, 43, 29, -3, 18, 47, 22, -32, -11, -43, 7, -37, -13, 29, -17, -21, 30, -42, 45, 27, -4, -1, 22, 3, 38, -4, -5, -23, 35, -26, 76, -17, -44, -32, -7, -9, -7, 35, -22, -50, 34, 63, -19, -14, 10, -8, -19, -44, 16, 22, 16, -8, 3, 14, 17, 4, -38, -9, -47, 27, 24, -10, 0, 6, 9, -51, 11, -46, -27, -44, 23, 30, -25, 18, -3, 14, 48, -13, -5, 16, 4, 15, 9, 58, 57, -16, 59, 24, -4, 14, 3, 8, 94, -14, 6, 39, -7, -60, -3, -4, -4, 44, 62, 3, 32, -29, -15, 10, 15, -14, 6, 36, 6, -62, -22, 5, 32, -59, 14, 49, -5, -12, -65, 10, 12, -25, -54, -3, -39, -14, -18, -23, -45, -9, 46, -39, 55, 48, -59, 0, 8, 21, -55, -52, 24, 12, 2, -9, 3, 24, 20, 2, -44, 2, 13, 8, -11, -43, -19, 16, 9, -56, -37, -38, -10, 27, -11, 48, 15, -29, 36, 2, -7, 11, -36, 31, 19, -29, -2, -9, -38, 14, 6, 7, 15, 6, -26, 31, -54, 15, -13, -1, 19, 21, 20, -8, -24, -30, 46, 22, -25, -36, 16, 18 ]
Memorandum Opinion. Defendant was convicted on plea of guilty of attempted breaking and entering an occupied dwelling house with intent to commit larceny therein, and appeals. The people have filed a motion to affirm. Upon examination of the brief and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm granted.	[ 54, 31, -10, -13, -43, 6, 26, 65, -14, 65, -23, 6, -25, -17, -19, -22, 32, 4, 39, -18, -15, -15, -5, 41, -5, -50, -15, 43, 8, 45, 57, -6, -25, -28, -10, -53, 15, 28, 3, 0, 20, 31, -8, 31, -76, -26, -24, 2, -46, -21, 36, -31, 27, -39, 14, -5, -34, 42, 38, 34, 29, 41, -43, 6, -40, -11, -6, -10, -28, -15, -32, 0, -13, -9, 4, 33, 28, 67, -38, 30, -20, 15, 25, -17, 36, -61, 23, -46, 2, -28, 49, 0, 3, -8, 3, 3, 15, -18, 72, -29, -89, -22, 11, 11, 4, -15, -46, -10, 60, -37, -47, -17, -19, -39, -57, -13, 15, 34, -24, -88, -17, 15, 47, 43, -21, -26, 11, -25, -35, -14, 6, 40, -37, 16, -1, -19, 21, -9, 6, 0, -18, 8, 76, 4, -13, 29, 7, -40, -9, 34, 24, 15, -52, -9, 13, 19, -43, -31, -5, 28, -46, 29, -52, -30, 21, -15, -49, 10, 23, -25, -16, -12, 65, -1, 23, 23, -9, 11, -13, 26, -16, 56, -23, 19, -26, 21, -61, 16, 31, -107, -29, 79, -8, -22, 34, -3, 0, 45, 12, 9, -45, -3, 19, -23, -16, 2, -73, 8, 13, -15, 36, -4, -81, -5, 24, -23, 25, -10, 5, 39, -61, -25, -4, -19, -40, 18, 11, 36, -2, -20, -9, 11, -16, -23, 39, 18, -34, -14, 71, -11, -53, 1, 30, -14, 17, -23, 2, 21, 6, -59, 23, 28, -19, 22, -15, -38, 59, 0, -56, 27, -2, 38, 3, 37, -61, 16, 22, -1, -59, 43, 29, 15, -21, 72, 23, 65, -56, 29, 13, -35, 7, 14, 44, 21, -59, 34, 23, -2, 37, 1, 20, -33, -21, 18, 34, -11, -12, 8, -71, -11, 33, -17, -17, -40, -13, 5, 27, -16, -14, -8, 44, 92, 7, 28, -15, 21, 25, -4, 8, -3, -54, 5, 16, -58, 0, -31, 51, -65, -4, -2, -34, -29, 0, 11, -8, 82, 18, -13, -12, 19, 21, -17, 25, -63, -15, 19, -9, -8, -42, 26, -19, -28, -14, -28, -7, -45, -53, 3, 1, -3, -3, 38, 28, -4, 28, 19, -12, -43, -7, 2, -11, -68, -14, 1, -56, -6, 37, -83, -47, 9, -3, -54, 39, 1, 21, 30, -7, -18, -2, 9, -65, -32, 16, -76, -41, -1, 49, -24, 15, -52, -34, 7, 45, 5, -35, 14, -6, -21, 24, 68, -18, 43, -25, 28, -5, 5, -17, 29, 72, -17, -53, -22, -4, 2, 17, 47, -14, 24, 13, -48, -28, 13, -12, 0, 9, 47, -1, 13, 35, 18, -15, -16, -15, 40, -6, -41, -58, 21, 22, -19, -14, -22, 10, -63, 46, 61, 33, 31, 17, -28, 19, 1, 23, 9, 28, 7, -80, -29, 40, 2, -20, 9, 35, 0, 0, 7, 6, 20, -1, 37, -19, -11, 31, 13, 0, -12, 25, -24, 11, -15, -40, 0, 63, -6, -52, 16, -12, -42, -5, 10, -40, 40, -52, -37, 15, 9, -12, 25, 44, 18, -14, 47, -17, -6, -25, -9, 56, -57, -20, 27, 1, -44, 5, 24, -33, 19, -6, -11, -33, -10, 64, -47, -10, 20, 0, 5, -30, 6, 46, 1, -14, 9, 15, -13, -8, 31, 5, 35, -7, 27, -34, 17, -24, 80, -20, -30, 5, 13, -7, -48, -1, -48, 46, 19, -31, -26, -7, 44, 28, -16, 11, -18, -24, 16, -26, -34, 7, 7, 32, -14, 16, 71, -10, 11, -6, 6, -3, 15, -21, -26, -70, 3, 29, -88, -90, -20, -45, -24, -1, 47, -27, 34, -28, -18, 30, 22, 35, 18, -33, -53, 79, -52, -37, 31, -10, 25, 2, 21, -29, 2, 0, 21, 9, -8, -32, -70, -16, 34, 0, 19, 5, 1, -21, -23, -37, 73, -20, 21, -44, -23, 19, 39, -17, -4, 17, -9, 24, -34, 17, 35, 4, 31, 2, -43, 49, 0, 15, 57, 0, -32, 20, 38, -4, 26, 29, 37, 9, -22, 31, 6, -20, 13, -41, 36, 19, 33, 61, 9, -9, -24, -7, -50, 14, -43, 13, -69, 56, 10, -3, -7, -19, 29, 39, -24, -5, 18, 38, 19, 10, 33, 7, -40, 20, 32, 17, -34, 27, -19, -31, 8, -37, 0, -19, 54, -8, -33, -71, -30, 8, -5, 23, 7, 21, 4, -18, -4, 32, -3, 78, -21, 15, -66, 20, 7, 32, 6, 0, -4, 65, -22, -9, 0, -56, -31, 9, 4, 5, 42, -1, -14, 67, -44, 19, 17, 5, 52, 48, -106, -12, 44, -6, -12, -36, 7, -34, 27, -23, 32, -11, 47, -12, 4, 12, 2, -63, 42, -9, -26, 71, 27, -4, -29, 12, -26, 0, -44, -43, -69, 0, -28, 23, 53, -58, 44, 48, 28, 55, -6, -3, 25, 0, -48, 56, 37, -12, 15, -24, 29, 8, 22, 44, -41, -40, -66, -9, -21, 64, -13, 21, -29, 16, 43, 13, -19, 32, 34, 50, -38, 2, -36, 27, -32, -4, 35, -11, -33, 34, -6, 15, 35, -10, -14, 35, 13, 3, 9, 0, 7, 5, -29, 84, -37, -11, -37, -15, 28, 2, 43, 16, -40, 26, 65, -15, 0, 14, -29, -16, -17, 13, -5, 25, -27, -5, 0, 49, -3, -5, 12, -31, 41, 10, -38, -14, 25, 10, -19, -8, -50, 0, -15, -28, 23, -4, 45, -16, 26, 61, -60, -5, 37, 0, 16, -1, 47, 35, -20, 31, 20, -16, 0, 19, 14, 58, -37, -18, 30, -47, -51, -29, 8, -16, 60, 38, 15, 31, -19, -9, 2, -24, -20, 22, 11, 3, -58, -18, -24, 29, -41, 12, 18, -5, -12, -67, 8, 10, -3, -39, -26, -8, -42, -9, -9, -43, -17, 64, -34, 64, -11, -32, 2, -24, 16, -17, -56, -6, 22, -20, 3, 4, 24, 16, -5, -30, 9, 17, 18, -4, -19, -5, 8, 42, -64, -33, -26, -34, 5, 0, 41, 13, -34, 61, -43, -10, 0, -40, 18, -12, -68, -9, 1, -55, -3, 1, 2, 32, -28, -26, 39, -67, 25, -18, -41, 51, 10, -15, -16, -38, -25, 31, 51, -4, -26, 11, 25 ]
Per Curiam. Defendant was convicted upon his plea of guilty to larceny over $100 (MCLA § 750.356 [Stat Ann 1971 Cum Supp § 28.588]) in the Hillsdale County Circuit Court. He appeals of right. Defendant was originally charged with armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). The information was orally amended at his arraignment to include larceny over $100. Defendant argues the failure to reduce this to writing inadequately informed him of the charge against him. No objection to this was raised at the arraignment. An examination of the record discloses no prejudicial error. MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016). This Court will not consider such an objection for the first time on appeal. People v. Kildow (1969), 19 Mich 194. Affirmed.	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Lesinski, C.J. Defendant insured was struck and severely injured by an unidentified, uninsured, hit- and-run vehicle on November 1, 1963. In accordance with the terms of the uninsured motorist clause in the insurance policy which plaintiff insurer had issued to defendant, defendant demanded arbitration of his claim against plaintiff on October 20, 1969. Subsequently, plaintiff brought this action for a declaratory judgment, contending that defendant-insured’s claim was barred by the three-year statute of limitations. Defendant moved for summary judgment, which motion the trial court denied. The trial court then ruled that the three-year statute of limitations did apply to defendant’s action and proscribed it. Defendant appeals as of right. On appeal, we are confronted with the single issue of whether the three-year or six-year statute of limitations applies to defendant insured’s claim against plaintiff insurer. We find this question to be a matter of first impression in this state. MCLA 600.5805; MSA 27A.5805, provides, in relevant part, that: “No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the time prescribed by this section. # * # “(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.” On the other hand, the terms of MCLA 600.5807; MSA 27A.5807, include the following language: “No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * * “(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.” Defendant bases his claim against plaintiff on the policy of insurance issued by plaintiff insurer to defendant. It included a clause providing that: “Subject to the limits of liability stated in this coverage, the company agrees to pay: “Part (1) All sums which the insured shall be legally entitled to recover as damages, including damages for care or loss of services, from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. # * # “Definitions. “For the purpose of this coverage: * * * “(d) uninsured automobile means * * * “(2) with respect to bodily injury only, a hit and run vehicle.” Insurers in the State of Michigan are required to include such uninsured motorist coverage within motor vehicle liability policies pursuant to the mandate in MCLA 500.3010; MSA 24.13010. Plaintiff insurer relies heavily on the Michigan Supreme Court decision in State Mutual Cyclone Insurance Co v O & A Electric Cooperative, 381 Mich 318 (1968), to support its proposition that the subject matter of the instant claim is automobile negligence, and is, therefore, governed by the three-year statute of limitations, concerning injuries to persons and property. In the State Mutual Cyclone Insurance Co case, plaintiff-insurer, as subrogee of its insured, brought an action against defendant, after an excessive surge in electrical current provided to insured by defendant caused a fire in insured’s barn, which fire destroyed ten head of insured’s cattle. Although plaintiff alleged that de fendant had breached its contract with insured by supplying the excess current, the Supreme Court held that the three-year statute of limitations was applicable, instead of the six-year term, which controls breach of contract actions. In so ruling, the Court stated: “When this Court decided Baatz we stated that if a plaintiff seeks recovery fof damages for injury' to person or property the 3-year rule applies irrespective of how plaintiff proceeded to seek such recovery * * * . “When we compare the statute in effect when the Baatz decision was handed down * * * with the same thought expressed in the rule-written version of the 1961 revised judicature act * * * , it becomes apparent that the legislature expressed approval of this Court’s decision in Baatz to the effect that it makes no difference what form of action the plaintiff institutes in seeking recovery for damages to property or person, but in all cases such action comes within the 3-year limitation rule. There is a total absence of any legislative mandate or thought that we distinguish between actions on express contracts to recover damages for injury to person or property and actions based upon implied contract.” State Mutual Cyclone Insurance Co, supra, p 324-325. Since plaintiff’s action was based on an injury to property, the three-year statute of limitations was applied and the action was barred, irrespective of the fact that he had sued on a contract theory. This Court has had the opportunity to interpret the State Mutual Cyclone Insurance Co doctrine on several occasions. In Smith v Gilles, 28 Mich App 166 (1970), plaintiffs sued defendant and defendant’s insurer ás a result of injuries incurred in an auto mobile accident. Count II of plaintiffs’ complaint alleged that defendant’s insurer, by indicating a willingness to settle with plaintiffs but failing to advise them of the three-year statute of limitations, had contracted with plaintiffs to settle at any time. In determining that the three-year statute of limitations barred plaintiffs’ claim in Count II, the Court noted that “this wrong lies essentially in tort”. Smith, supra, p 170. The Court emphasized that plaintiffs could not accomplish indirectly what they were proscribed from doing directly. Plaintiffs, in Harrington v Nelson, 32 Mich App 347 (1971), added a count alleging breach of an implied contract to their suit for conversion. Defendant had allegedly come onto plaintiffs’ land and converted dirt and gravel to his own use. This Court held that the three-year statute of limitations barred plaintiffs’ claim, because plaintiffs’ action was based on an injury to property, despite plaintiffs’ contract theory. A similar result obtained in Nelson v Michigan Bean Co, 22 Mich App 540, 544 (1970). Plaintiffs claimed that defendants’ breach of express warranties of contract resulted in injury to their hog-raising business. However, the only evidence of a contract introduced at trial was a sales slip. The Court stated that: “Absent any breach of a specific contractual provision, this case is governed by the statutory provisions applicable to injuries to persons or property.” (Emphasis supplied.) In applying these holdings to the facts of the present case, we deem it necessary to examine the underlying nature of the claim asserted by the insured against the insurer. Although there is no Michigan law on this point, courts from other jurisdictions have discussed the nature of the claim in this specific factual context. In Schleif v Hardware Dealer’s Mutual Fire Insurance Co, 218 Tenn 489, 494 ; 404 SW2d 490, 492 (1966), plaintiff insured suffered injuries in an accident with, an uninsured hit-and-run motorist, and subsequently brought an action against his insurer on the basis of his uninsured motorist clause. In declaring that the contract statute of limitations applied, the Court noted: “The instant case is not based on a suretyship between insured and tortfeasor, it is based on a direct contractual relationship between insured and insurer. Nor is it a warranty arrangement, * * * where the obligor’s breach of duty to the obligee was the tort itself.” In a similar case, the Wisconsin Supreme Court, examining the foundation of the legal obligation between insurer and insured arising from an uninsured motorist clause, said: “The purpose and intent of this type of coverage was to benefit the insured so that he would be reimbursed for his injuries. The purpose was not to provide free liability insurance for an otherwise uninsured motorist; and the endorsement does not do so because a right of subrogation does exist, if the insurer wishes to preserve it. In settling a claim under the endorsement, the insurer does not represent the uninsured motorist but rather itself on its own contract against its own insured who has paid a premium for this indemnity feature in his liability policy.” Sahloff v Western Casualty & Surety Co, 45 Wis 2d 60, 69-70; 171 NW2d 914, 918 (1969). The Court, in Sahloff, held that a suit brought under uninsured motorist coverage came within the confines of Wisconsin’s six-year contract statute of limitations, rather than the three-year tort statute of limitations. In tbe instant case, as indicated by tbe foregoing language from the Sahloff and Schleif opinions, plaintiff insurer owed no obligation to defendant insured, outside the terms of the insurance contract. Whatever claim that defendant insured may validly possess against plaintiff insurer arises solely out of a breach of a specific provision of a contract issued by plaintiff to defendant. It was not the tortious action of plaintiff insurer that gave rise to the claim based on the uninsured motorist clause of the insurance policy in this case. While it is true that a claim by defendant against the uninsured motorist in this case would be barred by the three-year statute of limitations, plaintiff insurer is not representing the uninsured motorist in this case, as pointed out in Sahloff, but rather itself, on its own contract. Moreover, defendant insured has not fabricated a contract claim, here, in order to accomplish indirectly what he could not do directly. Just as we must look to the real nature of the claim to determine whether a contractual action is, at base, an action for injury to person or property, we must also look to the real nature of this claim to determine whether a claim possessing personal injury aspects is, at root, an action for breach of contract. Contrary to the position taken by plaintiff insurer in this case, we believe the State Mutual Cyclone Insurance Co test was intended to apply to those cases where plaintiff is seeking to recover from defendant, or defendant’s insurer, where defendant had occasioned direct injury to plaintiff in his person or property, not where a party is seeking legal redress from his own insurer, which insurer has contractually agreed to indemnify him for injury perpetrated upon him, not by the insurer, but by third parties. A similar distinction was made by the court in Schulz v Allstate Insurance Co, 17 Ohio Misc 83, 84; 244 NE2d 546, 547 (1968), in interpreting an Ohio statute which read.: “An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.” Section 2305.10, Revised Code. An earlier Ohio decision had applied this two-year statute of limitations to a suit predicated on breach of an implied contract of safe carriage. The Schulz court distinguished the earlier decision from the factual situation with which it was concerned, a suit by an insured against his insurer on an uninsured motorist clause, emphasizing that in the earlier case: “As obviously distinguished from the instant case, the actions of the defendant caused injury to the plaintiff. Here, by virtue of Allstate’s contract, it had obligated itself to pay an amount equivalent to that which could be recovered in a negligence action, but we think it clear that the ‘cause of action’ is not one for ‘bodily injury’ within the purview of Section 2305.10, Revised Code.” Schulz, supra, 17 Ohio Misc p 85; 244 NE2d p 548. Accordingly, the court held that the longer contract statute of limitations was applicable to the action. Even if the State Mutual Cyclone Insurance Co case does not dictate employment of the three-year statute of limitations, however, plaintiff insurer argues that it should be applied nevertheless, because of the language in the insurance contract. The contract states that insurer will pay: “Part (1) All sums which the insured shall be legally entitled to recover as damages * * * from the owner or operator of an uninsured automobile.” (Emphasis supplied.) Since defendant insured’s action against the uninsured motorist would be barred by the three-year statute of limitations, plaintiff insurer contends that defendant is not “legally entitled to recover” within the terms of the contract. As authority for the proposition, insurer cites the opinion of the First Circuit Court of Appeal of Louisiana in Thomas v Employers Mutual Fire Insurance Co, 208 So 2d 374 (La App, 1968). However, that decision was overruled by the Supreme Court of Louisiana in Thomas v Employers Mutual Fire Insurance Co, 253 La 531; 218 So 2d 584 (1968). That Court explained its rationale for reversing Thomas, supra, in Booth v Fireman’s Fund Insurance Co, 253 La 521, 529; 218 So 2d 580, 583 (1968). Construing the “legally entitled to recover” clause, the Court stated: “We interpret the words ‘legally entitled to recover’ to mean simply that the plaintiff must be able to establish fault on the. part of the uninsured motorist which gives rise to damages and prove the extent of those damages.” Booth, supra, 218 So 2d p 583. The great weight of authority is in accord with the Booth interpretation. See Hill v Seaboard Fire & Marine Insurance Co, 374 SW2d 606 (Mo, 1963); DeLuca v Motor Vehicle Accident Indemnification Gorp, 17 NY2d 76; 268 NYS 2d 289; 215 NE2d 482 (1966); and Sahloff, supra. We agree with the decisions of these courts that the “legally entitled to recover” clause denotes only the establishment of fault on the part of the uninsured motorist and proof of the damages caused thereby. The “legally entitled” phrase does not subject insured’s claim to the three-year statute of limitations. We hold that the six-year statute of limitations applies to defendant insured’s claim against plain tiff insurer on the uninsured motorist clause of his insurance contract. Reversed and remanded for disposition not inconsistent with this opinion. Costs to defendant. All concurred. Baatz v Smith, 361 Mich 68 (1960).	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Memorandum Opinion. Defendant pleaded guilty to the offense of larceny from a person and was sentenced to imprisonment for a term of nine to ten years and appeals as of right. An examination of the record and briefs discloses no prejudical error. Affirmed.	[ 46, 48, 20, -10, -29, 24, -6, -17, -10, 54, -7, 7, -40, -2, 11, -35, 35, -17, 0, -23, 14, -24, 24, 47, 9, 6, 53, 82, 20, 35, 12, 30, 22, -25, -22, -11, -28, 11, 11, 9, -6, -11, 4, 8, -70, -6, -23, 21, 10, -29, 98, 18, 68, -29, 27, 28, -27, 8, 9, 40, 26, -1, -43, 16, -33, -18, 4, 23, -9, -36, -10, -5, -6, -4, 18, 44, 40, 64, -54, 44, -40, -14, -2, -14, 50, -36, -13, -57, -7, -32, 30, 15, 29, -6, -15, -70, -40, 0, 22, -46, -46, -54, -9, 72, -18, -19, -64, -44, -26, 17, -27, 8, 43, -53, -28, -37, -47, 28, 10, -94, 6, 13, 46, 30, 20, -50, -16, -22, -1, -40, 15, 46, -21, -22, 19, 8, -17, 31, 8, -3, -32, 3, 34, 25, 20, -4, -16, -29, 2, 39, -30, 15, -70, -3, 32, 34, -47, -24, 3, -53, -14, 12, -11, -81, 2, -21, 6, -30, 25, 17, -7, -13, 30, -9, 1, -37, -4, -14, -17, 12, -3, -4, -39, 23, -25, 31, -41, 42, -79, -104, -36, 61, 16, -6, -10, -46, 1, 63, 0, -1, -45, -13, 6, -16, 9, -18, -26, 15, -31, -13, 34, -16, 7, -1, 0, -3, 22, -18, 10, 63, -49, -22, -27, -115, -8, 31, 42, 41, -6, 33, 14, 8, 21, -44, 34, 41, -18, -29, 76, 34, -34, 3, -4, -29, 52, -26, -12, 2, -59, -35, -12, 27, -49, 11, -11, 0, 72, -15, -21, 29, -32, 11, 0, 10, -14, -18, 40, -2, -85, 9, -2, -35, -16, -2, -13, 52, -57, 17, 11, 7, 64, 17, 40, -15, -62, 11, -12, 52, 40, -25, 24, -6, -23, 24, 79, 18, -32, 10, -69, -20, 23, -48, -33, -13, 33, 9, 75, 5, -57, -9, 36, -2, -5, 48, -28, 3, 15, -33, -10, 16, -53, 26, 13, -72, 26, -13, 57, -21, 23, 1, -13, -42, -38, -25, 11, 96, 23, 2, -17, 10, -14, 11, 23, -22, -7, 53, -5, 0, -29, 14, 12, -18, 44, 19, -38, -87, -23, 3, -15, -29, 77, 19, 21, -43, 43, -11, -13, 0, -15, 23, 37, -39, -4, -21, -20, -13, 42, -40, -2, -5, 21, -35, 0, -2, 1, -39, -18, -14, -29, -13, -61, 57, -9, -66, -44, -4, 31, 14, -4, -63, -6, 19, 77, 8, -28, -37, -33, 21, 16, 26, -27, 42, 8, 62, -25, -34, 41, 8, 68, -35, 24, 40, 8, -9, 29, 33, -7, -4, 14, -53, 26, 1, 10, 2, 46, -1, -45, 18, 36, -8, 36, -12, -14, 66, 69, -25, -48, -30, 51, -23, 11, 0, -8, -30, 17, 53, 27, 4, 18, -15, 22, 27, -15, 16, 36, -56, -14, -25, 33, -42, 0, -6, 42, 24, -41, 13, 5, -5, 56, 24, 24, -40, -15, -18, 25, -29, 5, -17, -24, -25, -7, -8, 24, -43, 15, 31, 1, -43, 22, 36, -67, 33, 1, -20, 26, 48, -11, 9, 54, 32, -11, 56, 31, -11, -25, 2, 3, -50, -34, 38, 30, -47, -15, 45, -35, 31, -22, 5, -69, 20, 45, -75, -28, -19, 14, 0, -35, -47, -23, -52, -37, 37, 37, 42, 31, 18, 40, 16, -22, 37, -22, 37, 35, 23, -48, 6, 45, -1, 8, -26, -8, -18, 32, -8, 48, 32, -4, -1, -21, 9, 11, 11, 13, 50, -21, 44, -4, 13, 23, -19, 16, 60, -83, -27, -10, 27, 9, 20, 17, -28, -24, 47, -7, -44, -67, -28, -87, -62, 26, 49, -28, 36, -27, 3, 76, -39, 20, 15, -50, -37, 72, 0, -12, 38, 23, -3, -4, 7, -31, 19, 8, -14, 8, 20, -33, -48, -66, -34, -33, 60, -4, 18, 3, 0, -45, 39, -2, 30, -57, -25, 32, 25, -26, -34, 31, 25, -8, 17, 20, 17, -6, 53, 12, -56, 21, -13, 7, 23, -18, -1, -5, 21, -38, -2, 22, 8, -8, -40, 52, -24, -10, -33, -62, -5, 12, 51, 5, -22, 43, -51, 7, -63, 44, -43, -1, -28, 26, -2, 46, 54, -46, 13, -18, 51, 4, 27, 88, 0, -36, 18, 0, 19, 64, 28, 48, -64, 41, -8, -6, 13, 3, -18, -31, 54, -15, -58, -75, -1, -38, -10, -8, -36, 10, 24, -36, -6, -41, -12, 27, 11, 38, -20, 7, 0, 51, 11, -22, 6, 40, -15, -7, 10, -31, -36, -29, 0, -13, 22, 27, -39, 53, 44, 17, -8, 26, 14, 49, -96, -48, -20, -53, 23, -8, 1, -31, 22, -17, 1, -13, -8, 25, -14, 19, 3, -37, 8, -15, 42, 58, 16, -14, 6, -12, -31, -7, -38, -50, -40, 54, -62, 14, 24, -47, 10, 8, 8, -19, 30, -9, -25, 21, -15, 47, -16, -28, 22, 21, 48, -29, 45, -22, 17, -12, -20, 13, 2, 40, -12, 5, -13, -19, 0, -30, 0, -5, 29, 16, -6, -3, -18, -3, -14, 54, 32, -48, -28, -4, -48, -52, -8, 25, -5, 0, 5, 41, 20, -23, -43, 5, 20, 108, -50, -20, -78, -15, 4, 9, 16, -3, -70, 14, 11, 19, -22, -25, 37, 1, -13, 20, -52, 11, 26, -1, -13, 39, 14, -9, 10, 3, -14, 5, -19, 2, 0, -16, -33, -54, -6, -23, -6, -25, 1, -7, 23, 19, -17, 27, -24, -11, 13, 38, 37, -13, 20, 13, 17, -54, 6, -27, 46, 16, -15, -18, 30, -22, 10, -45, -24, 6, -37, -6, 64, 27, 48, 14, 15, 47, -5, -52, -28, -17, 34, 5, -39, 3, 13, 32, -52, 79, 1, 1, 4, -58, 0, -13, 42, -10, 6, 12, -26, -15, 58, -90, -4, -6, -55, 13, 23, -16, 12, -27, 34, -40, -21, -4, 66, 6, -45, -6, -13, 28, -41, -14, -13, 37, 20, 40, -30, -6, -1, 51, -76, -55, 18, -3, -51, 55, 54, 29, -61, 26, -23, 49, 0, 35, -5, 11, -29, -21, 21, -20, -22, -10, -7, -30, -25, 27, 6, -44, -2, 7, -11, 65, -57, -17, 5, -18, -21, 22, 63, -22, 9, 10, 39 ]
Reilly, P.J. Petitioner Robert Stackpoole, a corporate officer of Warrior Petroleum, Ltd., appeals as of right from a Michigan Tax Tribunal decision affirming a sales tax deficiency assessment against him. We affirm and remand. Warrior, which operated a retail gasoline station, filed a tardy tax return and was late in its payment of sales and withholding taxes for October 1981. As a result, on April 19, 1982, respondent issued a "notice of final assessment” for penalties and interest in the amount of $823.08. Another "notice of final assessment” for taxes, interest, and penalties was issued on April 27, 1982, in the amount of $10,806.85 for the period of November 1981 through February 1982. This notice was amended on June 3, 1982, and the amount due was reduced to $8,384.13. Also, on the same date, a notice was issued in the amount of $129.70 for penalties for March 1982. On June 2, 1982, the day before the issuance of these notices, Warrior filed for bankruptcy and an automatic stay was effectuated pursuant to 11 USC 362. In January 1985, the bankruptcy case was dismissed and the stay was lifted. In July 1985, an assessment in the amount of $10,435.82 was issued against Stackpoole, as the liable corporate officer. This assessment covered only the sales tax portion of the corporate assessment. Stackpoole appealed the personal assessment to the Michigan Tax Tribunal. Although Stackpoole acknowledged that he was the corporate officer responsible for paying the taxes, he denied any personal liability. The tribunal found that Stackpoole was liable for the unpaid taxes pursuant to MCL 205.65; MSA 7.536. The tribunal apparently did not directly consider the effect of the bankruptcy stay on Stackpoole’s responsibility for the unpaid taxes. Our review of the Tax Tribunal’s decision is limited to determining whether the decision is authorized by law and is supported by competent, material, and substantial evidence on the whole record. Keith v Dep’t of Treasury, 165 Mich App 105, 107; 418 NW2d 691 (1987); Peterson v Dep’t of Treasury, 145 Mich App 445, 449; 377 NW2d 887 (1985). The authority to impose liability on a corporate officer for unpaid sales tax is found in MCL 205.65(2); MSA 7.536(2), which provides in pertinent part: If a corporation licensed under this act fails for any reason to file the required returns or to pay the tax due, any of its officers having control, or supervision of, or charged with the responsibility for making such returns and payments shall be personally liable for such failure. The dissolution of a corporation shall not discharge an officer’s liability for a prior failure of the corporation to make a return or remit the tax due. A corporate officer’s liability under the statute is derivative because it arises only if the corporation fails to file a required return or pay a tax due. Keith, supra at 110. See also Livingstone v Dep’t of Treasury, 169 Mich App 209, 214; 426 NW2d 184 (1988), aff'd 434 Mich 771; 456 NW2d 684 (1990) (interpreting provision imposing liability on a corporate officer for the corporation’s unpaid use taxes). In Livingstone, the Court of Appeals stated: By statute, once an assessment for unpaid taxes against a corporation becomes final and the corporation fails to remit the taxes due, any of the corporation’s officers having control, supervision of, or charged with the responsibility for making the tax returns shall become personally liable. [Id. at 213.] On appeal, Stackpoole argues that he is not liable for the unpaid taxes of the corporation because the automatic stay was in effect at the time the June 3, 1982, notices were issued to the corporation. Stackpoole asserts that his liability is derivative of that of the corporation. Therefore, he reasons, he cannot be liable because the notices of final assessment were in violation of the automatic stay and thus were void. 11 USC 362 provides that a petition for bankruptcy, once filed, operates as a stay applicable to all entities of, among other things, the commencement or continuation of proceedings against the debtor; the enforcement of a judgment obtained before the commencement of the case in bankruptcy; any acts to obtain possession of property of the estate; any acts to create, perfect, or enforce a lien against property of the estate; and any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the bankruptcy case. 11 USC 362(a); see also Lopez v Lopez, 191 Mich App 427; 478 NW2d 706 (1991). The purpose of the automatic stay is to preserve the status quo of the estate in an effort to effectuate a successful reorganization or liquidation. The stay protects the debtor from collection efforts or foreclosure actions and protects creditors to the extent that there is an orderly liquidation proceeding by which all creditors of equal status are treated the same. Lynch v Johns-Manville Sales Corp, 710 F2d 1194, 1196-1197 (CA 6, 1983). Despite the broad prohibitions enumerated in § 362(a), a bankruptcy filing under chapter 11 "does not operate as a stay ... of the issuance to the debtor by a governmental unit of a notice of tax deficiency.” 11 USC 362(b)(9) (formerly [b][8]); H & H Beverage Distributors v Pennsylvania Dep’t of Revenue, 850 F2d 165, 166-167 (CA 3, 1988). Therefore, although a governmental unit may not collect taxes or create a lien during the period of the stay, it may notify the debtor of a tax deficiency. Id. at 167. In the present case, a revised "notice of final assessment” for the period of November 1981 through February 1982 and a "notice of final assessment” for March 1982 were issued after the bankruptcy stay became effective on June 2, 1982. However, we conclude that the issuance of these notices was not an "act to create, perfect, or enforce a lien” against the property of Warrior. 11 use 362(a)(4), (5). Pursuant to MCL 205.24(1); MSA 7.657(24)(1): If a person fails or refuses to file a return or pay a tax administered under this act within the time specified, the department, as soon as possible, shall assess the tax against the person and notify the person of the amount of the tax. The purpose of such a statutory notice provision is "to provide the taxpayer with notice that a deficiency assessment has been levied for certain taxes and to afford the taxpayer an opportunity to contest it.” Keith, supra at 109. The notice itself does not create a lien. A tax lien in favor of the state attaches "from and after the date that any report or return on which the tax is levied is required to be filed with the department.” MCL 205.29(1); MSA 7.657(29X1). In the case of sales taxes, on or before the fifteenth day of each month, a taxpayer must transmit a return, together with a remittance for the tax due for the previous month, to the department. MSA 205.56(1); MSA 7.527(1). In the present case, a lien for unpaid sales taxes for the periods of November 1981 through February 1982 and March of 1982 attached before the June 2, 1982, bankruptcy filing and the June 3, 1982, "notice of final assessment.” Additionally, the notice itself was not an act to perfect the lien, see MCL 205.29(2); MSA 7.657(29) (2) and MCL 211.682; MSA 7.753(52), nor was it an action to enforce or collect on the lien, see MCL 205.25(1); MSA 7.657(25X1). Although the notice issued in this case was called "notice of final assessment,” it is distin guishable in purpose and effect from an action "to collect, assess, or recover” a claim, which is prohibited by 11 USC 362(a)(6). Under federal law, an Internal Revenue Service assessment involves formal recording of the taxpayer’s liability in the office of the secretary. 26 USC 6213(c); H & H Beverage, supra at 168. A federal tax lien attaches when unpaid taxes are assessed. 26 USC 6321, 6322; United States v Donahue Industries, Inc, 905 F2d 1325 (CA 9, 1990). Thus, the federal "assessment” governs the time when a lien is created, while the "notice of final assessment” in the present case was issued to satisfy the due process requirement of providing the taxpayer with notice of a deficiency and an opportunity to contest it. The "notice of final assessment” issued in the present case is similar to the "notice of tax deficiency” that may be issued during the period of a stay. 11 USC 362(b)(9). When the irs finds a tax deficiency, it is authorized to issue a formal "notice of tax deficiency.” 26 USC 6212; H & H Beverage, supra at 168. The taxpayer has ninety days after receiving the notice to seek a redetermination. If the taxpayer does not seek a redetermination, the deficiency is assessed. 26 USC 6213(a); H & H Beverage, supra at 168. Thus, the "notice of tax deficiency,” like the "notice of final assessment,” provides the taxpayer with notice of a tax deficiency and with an opportunity to contest the amount due. On the basis of the foregoing, we hold that the issuance of the amended "notice of final assessment” was not in violation of the bankruptcy stay. Because Warrior failed to pay the tax due after receiving the notice, Stackpoole became personally liable under the statute. Keith, supra at 110; Livingstone, supra at 213. Although the Tax Tribunal did not specifically address the extent of the bankruptcy stay, it properly concluded that Stackpoole was personally liable. Accordingly, we affirm. See, e.g., Thomas v Leja, 187 Mich App 418, 421; 468 NW2d 58 (1991). Stackpoole also argues that he should not be responsible for penalties and interest that accrued during the period of the stay. We note initially that Stackpoole does not specify the amount that allegedly accrued during this period. On the basis of the record before us, it appears that the amount of penalties and interest on the tax for the period of November 1981 to February 1982, which was assessed against Stackpoole, exceeded the amount that was originally assessed against Warrior. However, we cannot determine whether the increase was due to an accrual during the period of the stay or whether the additional amount accrued from the period the stay was lifted, January 1985 to the time when the assessment against Stackpoole was issued in July 1985. Generally, in bankruptcy proceedings, interest on prepetition claims ceases to accrue upon the filing of the bankruptcy petition. Nicholas v United States, 384 US 678, 682; 86 S Ct 1674; 16 L Ed 2d 853 (1966); In re Boston & Main Corp, 719 F2d 493, 495 (CA 1, 1983). However, there are certain exceptions to this general rule. See id. at 496. Because the Tax Tribunal did not address the claim that interest and penalties accrued during the period of the stay, we remand for a determination whether there was an accrual during this period and, if so, whether Stackpoole could be charged with the additional interest and penalties. Affirmed and remanded. Gillis, J., concurred.	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Fellows, J. Plaintiff files this bill against the director of conservation to quiet title to a strip of land several hundred feet in width between the meander line and the present waters of Saginaw Bay, a part of Lake Huron. It is his claim that he owns the fee by reason of accretion and reliction, and that such title has been assailed by the defendant, who asserts that the title is in the State in trust for its people. From a decree dismissing his bill and sustaining defendant’s contention, he appeals. It is suggested rather than insisted upon by the attorney general, that plaintiff has not established title to the fast land. But upon the hearing in the court below plaintiff’s counsel put in evidence the abstracts of his title, and it was conceded that he had title, to the meander line. The abstracts have been filed with the other exhibits in this court. We shall accept the concession, and assume plaintiff’s title to the meander line to be unassailable. The strip involved has been platted into lots, is known as Aplin beach, and the lots have been leased to various parties who have erected cottages and who pay rent to plaintiff. The trial judge found the strip was the result of accretions, but we are satisfied from the record, and the facts of which we take .judicial notice, that it was formed by both accretions and reliction, the latter being the most potent. Saginaw Bay is very shallow at the shores, and but slight recession of the water uncovers a large area. The main question in the case, whether plaintiff has title in fee to the locus in quo and may put it to such legitimate use as he desires, is to be solved by the further question of whether we should at this time overrule Kavanaugh v. Rabior, 222 Mich. 68. That case of ejectment involved a portion of the disputed strip, was brought by the present plaintiff upon the same claims here asserted, and defended by a private individual upon the same ground here defended by the State. That case is not res adjudicaba of the present case, as claimed by defendant; th'e parties are not the same, nor are they privies, but that case did decide the questions here involved, and necessarily involved, and unless we are prepared to overrule it, it is controlling. It was there held that the title to the strip of land between the meander line and the then waters of the bay, which this record discloses has materially increased since the trial of that case, being a part of the lake bottom of Lake Huron at the time the State was admitted into the Union, passed to the State in trust for its people. The language there and here controlling in addition to the recognition of the trust doctrine in the bottoms of the Great Lakes was and is the following language of Mr. Justice Bird, speaking for the unanimous court: “When the meander line was established it fixed the status of the disputed strip as lake bottom, and this status in the law would not change even though a portion of it had become dry land.” If the title to the lake bottom passed to the State in trust upon its admission to the Union, and that title did not shift and change with the shifting and changes in conditions, and we so held in that case, then the title to the property here in question is in the State in trust, and is not in the plaintiff, and to sustain the plaintiff’s contention necessitates the overruling of the Rabior Case and the cases which have preceded it. The so-called “trust doctrine,” as applied to the Great Lakes, is now recognized beyond question by this court. While its applicability to inland waters has not received unanimous approval (see Collins v. Gerhardt, 237 Mich. 38), I do not understand that its applicability to the Great Lakes is questioned by any member of this court. But it has been a matter of slow growth. General language recognizing it will be found in opinions, but the subject was not considered in detail and the reasons upon which it was bottomed pointed out until Mr. Justice Hooker wrote his exhaustive opinion dealing with the subject in State v. Fishing & Shooting Club, 127 Mich. 580. No one signed with Mr. Justice Hooker, but he again wrote in Olds v. State Land Commissioner, 134 Mich. 442, adhering to his former views. On rehearing of this case an issue was framed and the case again came before the court in Olds v. Commissioner of State Land Office, 150 Mich. 134. Mr. Justice Montgomery, who wrote the prevailing opinion, did not go as far as Mr. Justice Hooker’s views, as expressed in the Fishing & Shooting Club Case, and Mr. Justice Hooker concurred in the result reached in a short opinion. But Mr. Justice Hooker lived to see his views become the holding of the court in the unanimous opinion in State v. Venice of America Land Co., 160 Mich. 680, which we shall now consider. Our Reports will disclose that, covering a number of years, the State was involved in litigation concerning the St. Clair Flats. Each case had been decided upon the record as made in that particular case, and as a result there had not been such a finality of decision as fixed the State’s title and its rights once and for all. Private parties were occupying, and seeking the right to occupy, this valuable territory for little or no consideration. The State, of course, desired that its title and rights be fixed by a decision that would be a finality, not only as to the case in hand but for all time and for territory of a similar character. The Venice of America Land Company had platted a vast territory on the Flats and had advertised it for sale to the public in defiance of any rights of the State. Thereupon the State filed its bill. A large amount of testimony was taken. It appears in the two volumes of record in that case. The case was exhaustively briefed; the briefs filed aggregating 336 pages. The State realized that, to maintain its bill, it must satisfy the court as a fact that the territory was lake bottom at the date the State was admitted into the Union, and it must satisfy the court as matter of law that the State then took title in its sovereign capacity in trust for its people, and that the conditions then existing were controlling for all time. This it succeeded in doing. The court found that the locus in quo was lake bottom at the time the State was admitted into the Union, it applied the trust doctrine, and in one terse sentence sustained the contention that conditions at the date of the admission of the State into the Union controlled. Mr. Justice Stone, speaking for the court, said: “The condition of this territory when the State was admitted into the Union is the condition which must control. That the State of Michigan holds these lands in trust for the use and benefit of its people-^if we are correct in our conclusion — cannot be doubted. The State holds the title in trust for the people, for the purposes of navigation, fishing, etc. It holds the title in its sovereign capacity.” We shall have occasion to refer to this case later. Following this decision, the legislature passed a comprehensive act for the leasing and control of lands of this character (Act No. 326, Pub. Acts 1913 [1 Comp. Laws 1915, § 606 et seq.]). It has been amended from time to time (Act No. 12, Pub. Acts 1917 [Comp. Laws Supp. 1922, §§ 610, 616, 630] ; Act No. 382, Pub. Acts 1921 [Comp. Laws Supp. 1922, § 616] ; Act No. 48, Pub. Acts 1923). Its validity was upheld in Nedtweg v. Wallace, 237 Mich. 14. This court, irrespective of what other courts have held, and irrespective of what textwriters have said, is committed to the trust doctrine as applied to lake bottom lands in the Great Lakes. We shall not again review the authorities sustaining that doctrine. Mr. Justice Hooker reviewed them exhaustively in State v. Fishing & Shooting Club, supra, and the writer considered them at some length in Collins v. Gerhardt, supra. But long before the Venice of America Land Company Case, and in 1888, it was held by this court in Sterling v. Jackson, 69 Mich. 488 (13 Am. St. Rep. 405), that the title to shore lands on the Great Lakes did not change with a change in conditions. The reverse of the present situation was then before the court. There the land had been inundated by navigable water. Plaintiff Sterling had obtained a patent from the State of lands adjoining Lake Erie, which lands were granted to the State under the act of congress of September 28, 1850, commonly known as the “swamp land act.” Their character had in the meantime materially changed, and at the time of the alleged trespass they were covered by water navigable in fact, and navigation over them was common. Mr. Justice Campbell pointed out, in his dissenting opinion, that for 32 years the locus in, quo had been “open water.” Mr. Justice Champlin, who wrote the prevailing opinion, recognized that this fact constituted an implied license to the use by the public of the navigable waters, but held that, when such license was revoked by the owner of the fee, the action could be maintained by such owner for a trespass thereafter committed and it was held (quoting from the syllabus) : “Lands lying in the State of Michigan which belonged to the United States at the date of the passage of the act of September 28, 1850, and which came within the class of swamp and overflowed lands referred to in that act, became the property of the State of Michigan, and any change in the condition of such lands afterwards from natural causes, whether they become dryer or more overflowed, could not deprive the State of its title to such lands.” * * * Plaintiff’s counsel urge that People v. Warner, 116 Mich. 228, sustains their contention. Language will be found in the opinion in that case having such tendency. But we must consider what was then before the court and what was then decided. To aid us we have examined the record and briefs in that case. The action was ejectment. The trial judge had directed a verdict for the plaintiff. So that defendant was entitled to the most favorable consideration of the testimony. Among the contentions of defendant and one very strongly urged was that he as riparian owner was entitled to access to navigable water, and that it was unimportant whether the stretch of relicted land was much or little. The brief of defendant’s counsel cites and considers many of the authorities here cited by plaintiff’s counsel. We quote from that brief: “Following this doctrine I contend that my client being the owner of an island, has the right to a shore entirely around it fronting upon navigable waters, on which if he should see fit he could construct landings, wharfs or piers for his use of such island. * * * “A principle must be established, and that principle must be founded upon reason. The reason that permits one to pass a meandered line is a plain one. We are entitled to go to the navigable water. If it can be said that when the lands lying between the meandered line and navigable waters amount to 600 or 800 acres the rule will not obtain, then there is no reason for the rule, and the meandered line should govern in all cases. “I trust that the specious argument made by counsel for the plaintiffs in the circuit court in this respect will have no force in this court.” In considering this contention, it was said by Mr. Justice Hooker, speaking for the court: “It is contended that the defendant Warner, as littoral proprietor, has a right of access to navigable water to the eastward of Maisou. If this is true (which we do not intimate), it is merely a right to use the intervening land for the purpose, which does not interfere with the rights of the public, and does not support a right to take full possession, and exclude both the State and the public from a large area of land and water, under a claim of title in fee.” We shall presently consider the question of plaintiff’s right to reach navigable waters, but the opinion in the Warner Case must be accepted as holding that such rights do not carry to the riparian owner the fee to the intervening land as against the State. We shall not be able within the compass of this opinion to discuss all or any considerable number of the cases from other jurisdictions which have been cited to us by plaintiff’s counsel. It is but fair to state that we have spent weeks in the consideration of this case, and we have not found any cases in this country or in England favorable to plaintiff’s claim which had not already been garnered by his counsel and submitted to us in their briefs. We should, however, consider some of the cases from other States in which the State was a party and asserting its rights. Three recent cases especially should be considered, as they were cases in which the attorney general appeared in behalf of the State. The opinions in these cases are exhaustive. In State v. Railroad Co., 94 Ohio St. 61 (113 N. E. 677, L. R. A. 1917A, 1007), the attorney general sought to restrain the defendants from using the subaqueous lands in the harbor at Cleveland on Lake Erie for dockage and wharfing facilities. The defendants conceded that the title to the subaqueous lands was in the State in trust, but claimed that they had the right to use them for wharfing out and dockage purposes, that this was an aid to commerce and did not interfere with navigation, that the Federal authorities had fixed a harbor line beyond which defendants had not extended their wharves and docks. It will, therefore, be noted that defendants did not claim the fee, but only the right of wharfing out. The court denied relief to the State. It is doubtful if this court on a similar record would have reached a different result. It should be noted that the Ohio court expressly recognized the trust doctrine, and said: “The State as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created. “If it is once fully realized that the State is merely the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use, a clearer view can be had. “An individual may abandon his private property, but a public trustee cannot abandon public property. Mere nonuser of the trust property by the public cannot authorize the appropriation of it by private persons to private uses and thus thwart the purposes of the trust.” Brundage v. Knox, 279 Ill. 450 (117 N. E. 123), both in the language used in the opinion and in the result reached unqualifiedly sustains plaintiff’s contention. The suit was instituted by the attorney general on behalf of the State and the land in question was beyond the meander line of Lake Michigan. Doemel v. Jantz, 180 Wis. 225 (193 N. W. 393, 31 A. L. R. 969), also sustains plaintiff’s contention. It was litigation between private parties, in which the attorney general, by leave of the court, was permitted to intervene. But it did not involve the beds of the Great Lakes. The lake was an inland one, and the locus in quo was the strip between high and low water. In the earlier case of Lamprey v. State, 52 Minn. 181 (53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541), the State was made a party because of its claim of an interest in the bed of a small inland lake which had become dry land. The court denied the right of the State, and held the title to be in the riparian owner. In the later case of State v. Korrer, 127 Minn. 60 (148 N. W. 617, L. R. A. 1916C, 139), the public was likewise a party. The right to mine iron ore under the waters of a small inland lake was involved. It was held that the riparian owner had title to the ore under the strip between high and low water mark and could exercise such right when the water was at low water mark. But in none of these cases, nor in others where the public was interested, was the claim made, or at least passed upon, that on the day of its admission into the Union the State acquired its title in trust, and that such title was neither lost nor enlarged by the changes in conditions occurring from year to year. The courts all seem to be impressed with the value of the right of the riparian or littoral owner to reach navigable waters. Thus, in Brundage v. Knox, supra, it was said: “This right is not mainly based, as argued by counsel for appellant, upon the right to the title to the submerged lands, but largely, if not chiefly, upon the right of access to- the water, otherwise the owners of lands along Lake Michigan might, by losing their frontage by accretion, be debarred of valuable rights for which there would be no adequate redress.” And in Lamprey v. State, supra, it was said: “But it seems to us that the rule rests upon a much broader principle, and has a much more important purpose in view, viz., to preserve the fundamental riparian right — on which all others depend, and which often constitutes the principal value of the land — of excess to the water. “The incalculable mischiefs that would follow if a riparian owner is liable to be cut off from access to the water, and another owner sandwiched in between him and it, whenever the water line had been changed by accretions or relictions, are self-evident, and have been frequently animadverted on by the courts.” This right of access to navigability is a valuable right and should be protected, but this court did not find it necessary in the Warner Case to hold that the fee to the soil passed to the littoral owner in order to protect such right, and we are clearly of opinion that we should differentiate between the right of access to navigability on the Great Lakes and the right to the fee of that which was subaqueous lands when the State was admitted into the- Union and the title to which passed to the State in trust on that day. Counsel have cited us to numerous decisions holding that the riparian owner takes title or at least a qualified title to low water mark, and holding that the meander line is not controlling as a boundary but only for the purpose of fixing the acreage. In the main, these cases involve inland lakes and streams. Counsel, however, stress La Porte v. Menacon, 220 Mich. 684. That case involved the construction of the word “shore” in a contract which we found the parties had themselves construed. But we entertain no doubt on this record and upon the facts of which we take judicial notice that the meander line correctly delineated the boundary between the water and1 fast land at the time it was run. One of plaintiff’s exhibits, a government document, establishes that in 1838 the level of Lake Huron was 584.68. This was the year after the State was admitted into the Union and the year before the survey of the land in this part of the State began. The testimony quoted in the Venice of America Land Company Case shows that 1837 and 1838 were years of high water, the culmination coming in 1838, the year before the survey began. At but one point on the map prepared by plaintiff’s surveyor for use in this case, and which shows present conditions, does the land at the meander line exceed the figure given of the level of Lake Huron in 1838, and the plaintiff’s testimony all shows that silt, bark, and other material have been washing in for years. We also take judicial notice that for some years the waters of the Great Lakes were receding. Indeed, the Venice of America Land Company Case demonstrates that the waters of the Great Lakes rise and fall over a cycle of years. It would be of little avail to plaintiff to hold that he took title to low water mark unless we also hold that he took title to the present low water mark. There is no testimony showing where the low water mark was in 1837, and accepting all plaintiff’s claims for the variation between high and low water mark, it is patent that the cottages erected by plaintiff’s lessees are below the low water mark of 1837. However, Mr. Justice Grant, speaking for the court in Ainsworth v. Hunting & Fishing Club, 159 Mich. 61, said: “It is the established law of this State that riparian owners along the Great Lakes own only to the meander line, and that title outside this meander line, subject to the rights of navigation, is held in trust by the State for the use of its citizens.” Brown v. Parker, 127 Mich. 390, involved rights under a patent issued pursuant to the swamp land act to lands on Lake Erie. Speaking for the court, it was said by Mr. Justice Hooker: “We are of the opinion that the survey of the government, and transfer to and sale by the State to the meander lines, as State swamp land, conclusively establish the boundaries of the lake, and that title of abutting proprietors extend to them upon the presumption that must be conclusive, i. <?., that when the meander lines were run they followed the true shore of the lake.” To overrule the Rabior Case would require us to overrule Sterling v. Jackson, supra, State v. Venice of America Land Co., supra, and probably Ainsworth v. Hunting & Fishing Club, supra, Brown v. Parker, supra, and the cases which have followed them. To overrule these cases would be to turn over to private ownership hundreds of thousands of acres of land which the recent low waters in the Great Lakes have uncovered and which form a fringe around our great inland seas and exclude the public from any beneficial use of them. These holdings may be out of line with the holdings in other jurisdictions. They may be out of line with the writings of textwriters and the decisions of other courts. We may concede them to be against the overwhelming weight of authority, but we should not overrule them for this reason when the effect would be to produce such staggering results. They have fixed a rule of property for this State. True, the property is public property, but that does not alter the reason for the rule. The property is held in trust for the use and benefit of over four millions cestuis que trusient, and they are entitled to the enforcement of the doctrine of stare decisis. In so far as the decree fixes the title to the land in question in the State in trust for its people, it will be affirmed. Changes in condition from year to year do not change .the title or rights of the State. They are fixed as of the date of the admission of the State into the Union. So, likewise, are the rights of the riparian owner. When the State was admitted into the Union the lands here bordering on Saginaw Bay were owned by the Federal government. It held them as proprietor and when it sold, the right of a riparian owner as of that date passed to its grantee. The authorities in this State and others all agree that the paramount right of the riparian owner on navigable waters is the right of access to navigable waters; the right to wharf out to navigability so long as he does, not interfere with navigation has long been recognized as valuable and of which he cannot be deprived. He has other rights in waters adjoining his land. He may bathe in them (People v. Hulbert, 131 Mich. 156 [64 L. R. A. 265, 100 Am. St. Rep. 588]), water his stock, withdraw water for domestic purposes. Other rights will suggest themselves. We are here dealing with the rights of the State in the waters of the Great Lakes as against the rights of the riparian owner, and what is here said, of course, applies only to the question before us. Upon the Great Lakes the right of the riparian owner to erect docks, to wharf out to navigability, is not only valuable to the riparian owner but an absolutely necessary aid to navigation. Without wharves and docks built by riparian owners commerce on the Great Lakes would come to an end. This right to reach navigable waters for all lawful purposes extends from the meander line to such navigable waters even though the intervening space is now by accretion and reliction dry land, and the State cannot put such dry land to any use that will infringe such rights. The decree should be modified to protect such rights.. But one other question requires consideration. It is insisted that to hold that plaintiff is not entitled to the fee of this strip of land would infringe his rights secured by the Federal Constitution. In Hardin v. Jordan, 140 U. S. 871 (11 Sup. Ct. 808, 838), it was said: “We do not think it necessary to discuss this point further. In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the State in which the lands lie.” See, also, City of St. Louis v. Myers, 113 U. S. 566 (5 Sup. Ct. 640). We have called attention to the act of 1913. Other States have had occasion to deal with a similar question. In some instances the subaqueous lands may only 'be leased to the littoral owner; in others the littoral owner must be compensated before a lease is given. Whether further legislation is needed, or whether the exercise of hard-headed common sense by both littoral owner and the conservation department will solve their problems, are questions not for us to determine. A decree will be here entered in accordance with this opinion. No costs will be allowed either party. Flannigan, C. J., and North, Clark, McDonald, Bird, and Sharpe, JJ., concurred. Wiest, J., concurred in the result.

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McDonald, J. The plaintiffs are doing business as the Citizens’ Bank of Hadley, Michigan. They brought this suit to recover the amount of a promissory note, given by the defendants to the Equator Oil Range Company for $500. The note was executed on October 23, 1923, and was payable on the first of May, 1924. On its face, it was stated that it was collateral to a stock subscription of even date therewith. It was indorsed by the payee to the plaintiff bank. The defense was that the note was procured by fraud; that it was without consideration; that it was given as collateral to a stock subscription and was therefore nonnegotiable; that there was no liability on the stock subscription contract because it had not been completed by acceptance of the company; and that no stock had been delivered to the defendants or tendered to them. At the conclusion of the proof, both parties moved for a directed verdict. The court directed the verdict in favor of the defendants. Judgment was entered on the verdict. The plaintiffs have brought error. The plaintiffs’ right to recover in this case depends upon the negotiability of the note on which they sue. If it is a negotiable instrument, they are holders in due course and are entitled to recover the full amount of the note. If it is not negotiable, they hold it subject to any legal defense which the defendant would have ■against it if it were still in the hands of the Equator Oil Range Company. 'The note is not negotiable. It refers to another 'collateral instrument which must be read in connection with it. On its face is the statement: “This note is collateral to stock subscription number ..............of even date herewith.” This statement was notice to the plaintiffs of an■other contract which they were bound to take into 'consideration in buying the note. If there was any "'Uncertainty about the makers’ liability on the face of the subscription contract, it would be repugnant to the certainty of the promise in the note. In Costelo v. Crowell, 127 Mass. 293 (34 Am. Rep. 367), it was said: “The words written upon the face of the note, ‘given as collateral security with agreement,’ being incorporated in and made part of the contract, indicate with clearness that there may be a contingency, to wit: the performance of the undertaking to which this is collateral, in which it would not be payable; and so it lacks that element of negotiability which requires that at all events a sum certain shall be payable at a certain time.” See, also, 8 C. J. p. 120; 3 R. C. L. p. 883, § 69. The test of negotiability would seem to be whether there was an uncertainty in the subscription contract that would render uncertain the express promise in the note to pay unconditionally and at all events a certain sum in money. A reference to the terms of the stock subscription contract will show that certainty of payment depended upon the approval of the contract by the Equator Oil Range Company, and no approval appears on the face of the instrument. There was no binding agreement to pay until the approval was made by the company. The subscription was merely an offer to subscribe, which offer was never accepted by the company by word or act. The subscriber never became bound to pay for the stock. The company never became bound to issue stock to him. If the defendant were here suing to enforce his subscription, the company could truthfully say that it never accepted him as a stockholder. If the note had remained in the hands of the company, the defendant could not have been compelled to pay. It is subject to the same defense in the hands of the plaintiffs. The claim that this defense was not open to the defendants, because no affidavit denying the execution of the note was filed, has no merit. No other questions require discussion. The judgment is affirmed, with costs to the defendants. Clark, Bird, and Sharpe, JJ:, concurred with McDonald, J.

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North, J. The appellant was charged with unlawfully selling and furnishing intoxicating liquors. In the complaint, warrant, and information this violation was specifically charged as a second offense, and defendant was found guilty. The first two assignments of error are based upon the refusal of the trial court to quash the information, or at least his refusal to strike out that portion of the information whereby this violation was charged as a second offense; it being defendant’s claim that there was no' competent evidence introduced at the examination to support the charge as a second offense. The record contains the testimony of a deputy county clerk who produced before the examining magistrate the records concerning the .conviction and sentencing in Ingham county of one Bert Spears on a charge of illegally transporting intoxicating liquors. From such records the defendant in that case appeared to have been arraigned September 28, 1925, convicted by a jury October 16, 1925, and sentenced October 20, 1925. But it is contended there was no evidencie of identity between the defendant Bert Spears in that case and the defendant Bert Spears in this case. At the examination there was no such proof except the identity of name and location; but this was sufficient for the purposes of the examination and holding the defendant for trial at the circuit. The statute (3 Comp. Laws 1915, § 15682) only requires “it shall appear * * * that there is probable cause to believe the prisoner guilty” of the offense charged. “The great weight of authority is to the effect that from identity of names identity of persons will be presumed unless, perhaps, the name is a very common one or there are other special circumstances creating confusion in the. identity. This rule has * * * frequently been applied in criminal as well as civil proceedings.” 19 R. C. L. p. 1332. See, also, People v. Absher, 240 Mich. 107; Atwood v. Sault Ste. Marie Light Co., 148 Mich. 224 (118 Am. St. Rep. 576); People v. Robinson, 135 Mich. 511; Clow v. Plummer, 85 Mich. 550. The third assignment is that the trial court permitted the names of three additional witnesses to be indorsed on the information on the day of trial and before the jury was drawn. The statute (3 Comp. Laws 1915, § 15761) requires the prosecuting attorney to indorse the names of witnesses known to him at the time the information is filed; “and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.” Only two of these witnesses were sworn, Hugh Silsby and George Bearup. They were sheriff and deputy sheriff, respectively, of Ingham county and were the officers who arrested the defend ant for illegally transporting liquor in 1925. They testified they knew defendant and presumably he had some recollection of them. Their testimony had to do only with the question of identity. There was no dispute in the testimony on this issue; and the defendant’s wife, whom he called as a witness, testified that her husband was convicted in the former prosecution. At the time the order was made for indorsing these names the defendant made no application for a continuance. His rights were not prejudiced by the order. People v. Mills, 94 Mich. 630; People v. Powers, 203 Mich. 40; People v. Maka, 237 Mich. 507. Assignments of error eight to eleven, inclusive, have to do with the charge of the court. Complaint is made because the case was submitted as one of furnishing liquor rather than selling, it being claimed that if any violation was proven it was a sale. There is. no merit in this contention. The information charged both unlawful selling and furnishing; and proof of a sale would be proof of furnishing. It is also asserted by defendant that the court failed to define “reasonable doubt;” that he omitted to charge relative to “presumption of innocence;” or that the jury must find as a fact that the liquor was intoxicating; and that by the charge the defense was limited to the establishment of an alibi. A fair reading of the charge convinces us that none of these contentions are well founded. The court said in part: “This is a case in which Bert Spears is charged with furnishing liquor illegally. * * * Now, in this case, as in every case, the respondent comes into court clothed with the presumption of innocence. The burden of proof is upon the people, and the people must prove to you beyond a reasonable doubt, by the evidence, that Bert Spears was guilty as charged. * * * Any furnishing or possession of intoxicating liquor is a crime under the statute. The people must prove that a crime has actually been committed.” The charge did not restrict appellant’s defense to his claimed alibi, nor did it fail to fairly protect his rights in submitting the case to the jury. No requests to charge were submitted by the defendant, nor was the trial court asked to modify or amplify the charge as given. In the absence of a special request, it was not necessary to define the meaning of “reasonable doubt.” People v. Waller, 70 Mich. 237. The defendant has no just cause for complaining of the ■charge as given. The record does not justify defendant’s contention that the trial court was in error in denying his motion for a new trial. The other assignments of error have been examined, but found to be corollaries of those hereinbefore considered, and they are without merit. The conviction'and judgment are affirmed. Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.

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Fellows, J. Plaintiff was employed in a store located on Monroe avenue in the city of Grand Rapids. At about 1:30 in the afternoon she had occasion to cross the street. At the point of crossing there was a platform used as a safety zone adjoining the street car tracks, 99 feet long, 4 feet wide, and 6 inches high. It is plaintiff’s claim and testimony that she stepped up on this platform, that it was crowded, some street cars were standing there to take on and discharge passengers, and that, while waiting for the traffic to clear, the automobile owned by defendant Mrs. D. M. Perry and driven with her consent ’by her daughter, defendant Eleanore Perry, was driven so closely to the platform as to catch her clothing, drag her into the street, her ankle was run over causing a fracture of two bones at or near the same. She was unable to work for some time and there is testimony of loss of earnings, and considerable suffering. Defendant Eleanore Perry was alone in the car when the accident occurred. She testified.that she was driving in the usual course of traffic, in the middle of that portion of the street, which from the curb to the platform was 10 feet and 6 inches wide, and while she did not see plaintiff until about the moment of the accident, the effect of her testimony was that she was not on the platform at all but was out in the street when the accident occurred. The case was submitted to the jury and a verdict for $1,500' was rendered. It is insisted that there was no evidence to- take the question of defendant’s negligence to the jury; that the happening of the accident alone ÍS' not evidence of negligence and that the plaintiff’s case at most rested on conjecture, surmises and guesses. This court has consistently refused to adopt the rule of res ipsa loquitur and has as consistently held that cases may not go to the jury where recovery can only be based 'on guesses, conjectures, and speculation. But we have also pointed out that there is a difference between conjecture and the weighing of probabilities from the established facts. There was testimony that defendants’ car. was driven within five inches of the platform; there was testimony tending to show that plaintiff’s clothing was caught by it. Manifestly if plaintiff’s clothing was caught by it, that fact is some evidence that the car was driven very close to the platform. It was midday, the platform was a large one and readily visible to any one driving down the street; it was crowded with people. Under the facts disclosed by this record it can not be said that no negligence of defendants was proven, and the court did not err in refusing to direct a verdict for defendant on this ground. It is strenuously urged that the court erred in the instructions to the jury on the question of contributory negligence. Error is assigned on the charge as given and the refusal to instruct as requested. The trial judge charged the jury that plaintiff would not be guilty of contributory negligence if she remained on the platform. It may be said that upon the question of contributory negligence the case was made to turn on the question of whether plaintiff stepped down from the platform or not, the court in effect charging that if she did she was negligent. He refused instructions antagonistic to the view entertained in his charge. The platform, six inches high, was a safety zone. It was crowded with people. The fact that plaintiff was forced to stand at the edge of the platform was in no wise due to her fault. A safety zone should be a place of safety. ' We had a somewhat similar question before us in Jarosz v. Geisler, 219 Mich. 283. In that case there was a dispute as to where the deceased was when struck; this made the question one for the jury as we held. But in discussing defendant’s contention that a verdict should have been directed on the ground of contributory negligence, this court was required to determine the rights of deceased if he was within the safety zone and it was there said by this court, speaking through Mr. Justice McDonald: “Whether or not he intended to board the car or. to cross the street to the sidewalk, he had a right to believe that while he was within that area he would not be run down by an automobile; he had a right to assume that the driver of the truck would exercise reasonable care and not drive his machine into the place where passengers are accustomed to get on and off of street cars.” We think that case controlling of the one before us. Plaintiff’s medical testimony negatived the permanency of the injury. Defendants asked an instruction that she was not entitled to recover for permanent injury. This instruction was refused. On the question of damages the trial judge instructed the jury: “Now if you find from the evidence in this case under these instructions I have given you that plaintiff is entitled to recover, then you will consider what the amount of her doctor bills are and having an X-ray taken, what it cost her, what those expenses are,' and if you find she is entitled to recover she is also entitled to recover all of the earnings she has lost by reason of this injury at the rate of $25 per week for the time she lost. Now if she is entitled to recover, she is entitled to recover for her pain and suffering that she suffered.” He then instructed them properly as to their duty in fixing the damages for pain and suffering. In concluding his charge he said: “If you find it was, you determine what in your judgment would be a sum of money that would fully and fairly compensate the plaintiff for the money she had to pay out and the loss of her earnings, and for her pain and suffering.” While the specific instruction requested was not. given it will be seen that recovery was by the charge limited to expenses, loss of time, pain and suffering in the past and did not justify any allowance for anything in the future. Defendants’ counsel rely on Butter v. Railway, 181 Mich. 617; Matthews v. Lamberton, 184 Mich. 493; Kethledge v. City of Petoskey, 179 Mich. 301. In the Butler Case the charge of the court does not appear in the opinion bu.t an examination of the record shows that the following was the instruction on the question of damages and all the instruction on that subject: “And if you say guilty, you are at once to compute, what in your judgment — what in your average judgment — would be a just compensation. Damages are intended, when they are awarded, to make good the injured party. The real purpose of damages would be to make good the injured party. It would be impossible to add it up here for you; that is,a matter for you to determine.” This court held that it was error to refuse the specific instruction that a recovery' could not be had for permanent injury. It is manifest that the instructions given did not cover the subject or cure the error. In the Matthews Case the instructions do appear in the opinion, and it will be noted that they permitted recovery for both past and future damages. In the Kethledge Case the instructions permitted recovery for permanent injury although the evidence did not tend to establish such injury. In the instant case, while the court did not instruct the jury what damages she could not recover for, he did instruct them what damages she could recover for and limited the same to the present damages. We must assume they followed such instructions. Indeed, the size of the verdict negatives any claim they did not. See Jozefiak v. Railway, 193 Mich. 318. We do not perceive that defendant was in any way prejudiced by the failure to give the specific instructions. The other errors need not be discussed further than to say that the verdict was not against the clear weight of the evidence. The judgment will be affirmed. Flannigan, C. J., and Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice SNOW took no part in this decision.

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McDonald, J. This action was brought to recover damages for personal injuries received from fire alleged,to have been caused by an explosion of kerosene sold by the defendants. Helen Hoadley is an infant. She was injured on July 8,1924. On March 80, 1925, she settled her claim for damages with the Gafill Oil Company for $1,000. In the settlement agreement, which was reduced to writing, she was represented by her father, Harrison Hoadley, and her brother, Glenn Hoadley. It was agreed that she should apply to the probate court for the appointment of a guardian, who, when appointed, should cause a suit to be begun in the circuit court against the defendant and that the defendant would consent to the entry of a judgment against it for $1,000, and would pay the same. The father, Harrison Hoadley, was appointed guardian of the plaintiff and duly qualified. The settlement agreement was fully carried out; suit was begun; judgment for $1,000 was obtained and was paid and discharged by the defendant. On March 26, 1927, the present suit was begun involving a claim for damages for the same injury as that for which judgment had been entered in the former suit. No motion was made to set aside the former judgment and no reference was made to it in this declaration. It came into the case with defendants’ plea in which the facts were alleged and the claim made that the former judgment was res adjudicada of the matters averred in the plaintiff’s declaration. On this ground the defendants subsequently filed a motion to dismiss. The circuit judge granted the motion and entered an'order of dismissal. The plaintiff has brought error. It is the contention of counsel for the plaintiff that the former judgment is not binding on her because it was entered by the court without an Investigation of the facts and without any knowledge as to whether the settlement on which it was based was fair and just. In support of this contention, he cites Dudex v. Sterling Brick Co., 237 Mich. 470; Palazzolo v. Judge of Superior Court, 234 Mich. 547; and Metzner v. Newman, 224 Mich. 324 (33 A. L. R. 98). These cases might be applicable if this proceeding were a motion to set aside the judgment. The trouble with counsel’s argument is that it is all directed to a collateral attack on the former judgment. That judgment was rendered by a court having jurisdiction of the parties and of the subject-matter. It is binding until set aside, and it can only be set aside in a direct proceeding brought for that purpose. The circuit judge correctly held that the judgment rendered in the former case was a bar to the plaintiff’s recovery in this suit. It is also argued by the plaintiff that, as the defendant Sigmond Patz was not a party to the former suit, he is not released by the judgment rendered in that case. The plaintiff is here suing for the same wrong and on the same facts as were involved in her previous suit in which she obtained judgment which has been satisfied by payment. Her theory in this suit is that the defendants were joint wrong-doers. “As a plaintiff can have but one satisfaction for a joint wrong, if he recovers a judgment against one of the tort-feasors and obtains satisfaction, this operates as a discharge of the others.” 34 C. J. p. 982, § 1404. Counsel concludes his argument with the request that if the judgment be reversed this court direct that the case be transferred to the chancery side of the court under the provision of section 12351, 3 Comp. Laws 1915. That statute has no application to the situation presented by this record. The judgment is affirmed, with costs to the defendants. Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, and Clark, JJ., concurred. The late Justice Snow took no part in this decision.

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Fellows, J. Defendant trust company acted as agent for a Mrs. Webb in the management of her property. It rented her real estate and collected the rents. Among the property owned by her was a store building on Division street in Grand Rapids. This was rented to a Mrs. Traxler who sublet a portion of it to plaintiff. He made some repairs and established a restaurant in the portion so rented. The repairs included covering a portion of the walls with composition beaver-board. The restaurant was run for a time by a man named Wilson, was then sold to Mr. Badgerly, who ran it a few months, and it was then sold by plaintiff to a Mrs. Beiber on a title-retaining contract,'the effect of which we need not determine. Mrs. Beiber paid the rent to defendant and ran the place for a few months, when she quit and left for parts unknown. Plaintiff obtained the key she had left and for nearly three weeks, had opportunity to remove the property covered by his title-retaining contract. He paid no rent, hor had he ever paid rent to defendant. He was asked to remove the property, but replied that he would do so. when he got ready. Learning that he was tearing off the beaver-board, defendant put a new lock on the building, replaced the beaver-board he had torn off, placed the movable property in storage subject to plaintiff’s order, and notified him of this fact. Shortly thereafter this action for conversion was instituted. It was tried by the court without a jury, and written findings of fact and conclusions of law were filed. Judgment for defendant was entered. The trial judge reached the conclusion that the beaver-board became a part of the real estate. The testimony sustains the findings upon which this conclusion is based. In plaintiff’s declaration he alleged that he became a subtenant under one Samuel Glover, and that it was agreed between him and Glover that he could remove the beaver-board. But there is not a scintilla of evidence to sustain this allegation. He testified that he rented from Mrs. Traxler, and he does not testify that he had any arrangement either with her or with Glover, who had no interest of any kind in this property, or any one else, that he could remove the beaver-board. It cost him about $40, and was securely attached to the wall by means of strips of wood nailed with sixpenny nails. He did not consult with Mrs. Webb or her agent before putting it on, and it is exceedingly doubtful that he ever intended to remove it until this controversy arose. There is testimony that its removal did damage to the building, how much is in dispute. Under the rules laid down by this court in numerous cases, some of which are cited and quoted from in Morris v. Alexander, 208 Mich. 387, it can not be said as- matter of law that the beaver-board remained the personal property of the plaintiff to be removed by him when and as he saw fit. See O’Brien v. Kusterer, 27 Mich. 289; McAuliffe v. Mann, 37 Mich. 539; Felcher v. McMillan, 103 Mich. 494. The restaurant had the usual accessories consisting of dishes and other articles necessary to conduct the business. The testimony is ample that plaintiff had reasonable time and opportunity to remove this property. Defendant did not and does not make any claim to it. Another tenant had been obtained for the premises and defendant desired to put them in shape for occupancy. Plaintiff was requested to remove the property; he said he would do so when he got ready. He was informed that if he did not remove the property defendant would place it in storage so it could use the premises. This it finally did, and there is no claim that any of it was damaged or that it was not properly stored subject to plaintiff’s order. He was given notice of this fact. This was not a conversion of the property by defendant.' The case is not unlike Mattice v. Brinkman, 74 Mich. 705. It was there said by Mr. Justice Morse, speaking for the court: “He could have got his goods at any rate on Tuesday, and probably on any day before that if he had asked for them. But it seems, from his owii testimony, that he preferred to call the transaction a sale of the goods to the defendant, and to make him ■ pay for them. Such action is not to be encouraged by the courts. * * * Here the right of the plaintiff to the personal property was never denied, and it was his own fault that he did not regain his goods. They were simply moved from one place in the building to another as a necessary act in the taking of possession by defendant of the building. To call this a conversion, because defendant had no right to so move them, when the possession of or title to them in the plaintiff was never questioned, and they were neither lost nor destroyed by such moving, would not only be unjust, but such a holding would find no support in the law.” The judgment will be affirmed. Flannigan, C. J., and Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice Snow took no part in this decision.

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Corrigan, C.J. The prosecution appeals by right the order vacating defendant’s convictions of three counts of assaulting an employee of a place of confinement, MCL 750.197c; MSA 28.394(3), because, although proving that defendant was a prison inmate, the prosecution failed to prove that he was “lawfully” imprisoned. In People v Gaines, 223 Mich App 230; 566 NW2d 35 (1997), this Cotut held that, for purposes of the instant offense, a rational trier of fact could not find beyond a reasonable doubt that an inmate was lawfully imprisoned on the basis of evidence that he was incarcerated in a state prison. We therefore affirm under Gaines. But for our obligation under MCR 7.215(H)(1) to follow Gaines, however, we would vacate the trial court’s order and reinstate defendant’s convictions. i This case arises from an altercation between inmates and guards at the Gus Harrison Correctional Facility, a state prison located in Adrian. The prosecution charged defendant with three counts of assault with intent to do great bodily harm less than murder (agbh), MCL 750.84; MSA 28.279, for his role in the melee. At the close of evidence, the prosecutor requested an additional instruction on the offense of assault of an employee of a place of confinement. The trial court granted the request. The jury acquitted defendant of agbh, but found him guilty of three counts of assaulting an employee of a place of confinement. The trial court enhanced defendant’s sentences as a fourth-offense habitual offender, MCL 769.12; MSA 28.1084, and sentenced him to a term of imprisonment of five to fifteen years for each conviction. Defendant subsequently moved to set aside his convictions and dismiss the charges because of insufficient evidence. The trial court granted the motion, reasoning as follows: The prosecution, at trial, proved that defendant was a prison inmate at the time the offense occurred but it did not offer a copy of his Judgment of Setence [sic] or any other evidence to establish that such imprisonment was lawful. On April 26, 1997, the court decided People v Gains [sic], 223 Mich App 230, 566 NW2d 35 (1997), which was released for publication on July 16, 1997. In that case, a divided panel of the Michigan Court of Appeals by 2 to 1 vote, decided that the legislature specifically chose to require the prosecution to prove that the defendant was lawfully confined in prison in order to sustain a conviction. The Court of Appeals ruled that their proof that he was an inmate was insufficient. The prosecutor proved defendant, Dashone Neal, was a prison inmate, but did not prove he was lawfully imprisoned. Defendant’s conviction [sic] shall be vacated and the defendant discharged as to these charges. II The prosecution argues that the trial court erred in granting defendant’s motion because evidence that defendant was a prison inmate at the time he assaulted the prison guards was sufficient to prove that he was lawfully imprisoned. We agree, but are required to hold otherwise by MCR 7.215(H)(1). In reviewing the sufficiency of the evidence, this Court views the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could find the essential elements of the crime proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992). To support a conviction of assault of an employee of a place of confinement, the prosecution must prove that the defendant: (1) was lawfully imprisoned in a place of confinement; (2) used violence, threats of violence, or dangerous weapons to assault an employee of the place of confinement or other custodian; and (3) knew that the victim was an employee or custodian. MCL 750.197c; MSA 28.394(3); People v Williams, 173 Mich App 312, 318; 433 NW2d 356 (1988); People v Norwood, 123 Mich App 287, 294-295; 333 NW2d 255 (1983). In Gaines, supra at 234, this Court, after concluding that lawful imprisonment was an element of the offense of assault of an employee of a place of confinement, determined that evidence of the defendant’s incar ceration in a state prison was insufficient to prove the lawfulness element because a rational trier of fact could not infer lawfulness from the imprisonment itself. Gaines further noted that the prosecution could have easily satisfied its burden by introducing the defendant’s judgment of sentence for the crime for which he was imprisoned. Judge D. A. Burress concurred in the majority opinion, but wrote separately to expound on the underlying facts. Judge Burress emphasized that the prosecution did not produce evidence of the defendant’s prior convictions and sentences until the habitual offender phase of the trial. He rejected the prosecution’s argument that the jury could infer lawfulness from the incarceration itself and observed as follows: The prosecution has available to it many avenues by which it may prove that an individual has been lawfully incarcerated. Some are more cumbersome to navigate than others. For instance, it may elect to bring forward witnesses who were present at the time a sentence was imposed, or those who were present when an individual was otherwise confined by lawful authority. Others may take the more convenient route of simply producing a certified record of the sentence or other commitment. [Id. at 238-239.] Judge Sawyer dissented from the majority opinion in Gaines. Viewing the evidence in a light most favorable to the prosecution, Judge Sawyer concluded at 240: In the case at bar, I am satisfied that a rational trier of fact could conclude that defendant was lawfully imprisoned on the basis of the fact of his imprisonment and that none of the evidence suggested that the imprisonment was unlawful. Cf. People v Williams [supra]. While unlawful incarceration may occur, it is certainly a rare occurrence. In the absence of any suggestion to the contrary, a rational trier of fact could reasonably infer that an incarceration is lawful. In this case, as in Gaines, the prosecution presented no evidence beyond the incarceration itself to establish that defendant was lawfully imprisoned. Accordingly, under Gaines, the prosecution failed to present sufficient evidence to support the convictions. Thus, the trial court properly vacated the convictions. m If we were not obligated under MCR 7.215(H)(1) 1° follow Gaines, we would vacate the trial court’s order and reinstate defendant’s convictions because the prosecution presented sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that defendant was lawfully imprisoned. We would follow the reasoning of Judge Sawyer’s dissent and conclude that a rational trier of fact could find that defendant was lawfully imprisoned on the basis of evidence that he was, in fact, incarcerated in a state prison when he assaulted the prison guards. We initially agree with Gaines that the prosecution must establish the lawfulness of the imprisonment as part of its prima facie case of assault of an employee of a place of confinement. MCL 750.197c; MSA 28.394(3) expressly so provides: A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place, including but not limited to hospitals and other health care facilities or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from a prison, for a crime or offense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made, is guilty of a felony. Both Michigan courts and courts of other jurisdictions have historically construed statutes requiring “lawful” imprisonment, detention, or commitment as providing that lawfulness is an element of the prosecution’s prima facie case. See People v Hamaker, 92 Mich 11, 16; 52 NW 82 (1892); see, generally, Perkins, Criminal Law (2d ed), ch 5, § 3a, pp 502-503; 4 Torcia, Wharton’s Criminal Law (15th ed), § 640, pp 451-453. Further, when the Legislature amended the prison escape statute, MCL 750.193; MSA 28.390, to eliminate the lawfulness element, the Legislature did not similarly amend MCL 750.197c; MSA 28.394(3). Thus, lawfulness remains an element of the prosecution’s prima facie case in prosecutions under MCL 750.197c; MSA 28.394(3). We disagree, however, with Gaines’ determination regarding the quantum of evidence necessary to prove lawfulness when the defendant is incarcerated in a state prison. Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of an offense. People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996). Were we to consider this issue as a matter of first impression, we would conclude that a jury could reasonably infer lawful imprisonment from evidence that the defendant was incarcerated in a state prison. MCL 750.197c; MSA 28.394(3) applies to persons “lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place . . . .” Thus, the statute applies to persons incarcerated in both jails and state prisons, which are places “of confinement established by law for any term.” People v Wingo, 95 Mich App 101, 104; 290 NW2d 93 (1980). State prisons are, however, far more selective in their admission criteria than jails. The jury may rely on its common knowledge that a person must have been convicted of a crime to attain prison inmate status. People v Schmidt, 196 Mich App 104, 108; 492 NW2d 509 (1992); CJI2d 3.5(9). Thus, the jury may reasonably infer that a defendant was lawfully imprisoned from evidence that he was incarcerated in a state prison. Cf. Wright v Mississippi, 162 Miss 494, 499-500; 139 So 869 (1932). This Court apparently recognized the reasonableness of this inference in People v Williams, supra. In Williams, supra at 318, this Court held that the prosecution presented sufficient evidence to support convictions of assaulting an employee of a place of confinement and of being an inmate in possession of a weapon, MCL 800.283(4); MSA 28.1623(4). It reasoned: The prosecution’s evidence indicated that defendant was an inmate at the state prison in Marquette, that he struck prison employee Edward Humphrey on the forehead with a rolled-up magazine with a ball point pen inserted in one end sticking out two to three inches and bound with a piece of cloth, and that defendant was familiar with Humphrey as a resident unit officer responsible for prisoners in the block in which defendant was housed. Humphrey’s wound left him dazed and required three stitches near his hairline. Additionally, he sustained a laceration one inch long over his left eye. The pen and magazine implement was ultimately recovered from the area of defendant’s cell. In light of these proofs, the jury’s verdict was well supported by the evidence. We recognize, as Judge Burress notes in his concurrence in Gaines, that a person’s incarceration in a state prison may be unlawful. See Hamaker, supra, Cross v Dep’t of Corrections, 103 Mich App 409; 303 NW2d 218 (1981), and People v Alexander, 39 Mich App 607; 197 NW2d 831 (1972). The prosecution need not, however, negate every theory of innocence to establish a prima facie case. See People v Quinn, 219 Mich App 571, 574; 557 NW2d 151 (1996). Unlawful imprisonment is certainly a rare occurrence. Further, that the prosecution could proffer additional evidence, such as a judgment of conviction, to strengthen its case is of no consequence. MCL 750.197c; MSA 28.394(3) does not require a defendant to be in custody by virtue of a conviction. Compare 18 USC 751(a); United States v Richardson, 687 F2d 952, 966-967 (CA 7, 1982). Thus, the prosecution may, but need not, proffer a judgment of conviction or other additional evidence to prove the lawfulness of the imprisonment. The prosecution may instead simply elect to rely on a reasonable inference drawn from the defendant’s incarceration in a state prison. The jury, not this Court, should weigh the evidence presented. See People v Lemmon, 456 Mich 625, 638; 576 NW2d 129 (1998). Accordingly, if we were not obligated to follow Gaines, we would hold that a reasonable jury could find on the basis of the evidence in this case that defendant was lawfully imprisoned. Affirmed. This Court has held that unlawful imprisonment remains an affirmative defense to a charge of prison escape. People v Hurst, 59 Mich App 441, 443-446; 229 NW2d 492 (1975). Michigan statutes provide that those incarcerated in a state prison must have been convicted of a crime and sentenced to a maximum term of at least a year and a day. MCL 769.28; MSA 28.1097(1); People v Blythe, 417 Mich 430, 437; 339 NW2d 399 (1983). When a defendant is sentenced to confinement in prison, the sheriff must not only convey the defendant from jail to prison and deliver him to the warden, MCL 800.48; MSA 28.1417, but also deliver a certified copy of the sentence prepared by the clerk of the court. MCL 800.50; MSA 28.1419, MCL 769.17; MSA 28.1087. We respectfully disagree with those courts in other jurisdictions that have reached contrary results. Harding v Arkansas, 248 Ark 1240; 455 SW2d 695 (1970); Fulford v Florida, 113 So 2d 572 (Fla App, 1959). We express no opinion regarding those decisions rejecting an inference of lawfulness from evidence of incarceration in a county jail. Louisiana v Thompson, 597 So 2d 26 (La App, 1992); Maggard v Florida, 226 So 2d 32 (Fla App, 1969), overruled on other grounds in Florida v Williams, 444 So 2d 13 (Fla, 1984) (holding that unlawfulness of confinement was an affirmative defense, not an element of the crime of escape). Imprisonment is not rendered unlawful because the conviction leading thereto is subsequently reversed or otherwise infirm. See People v Mullreed, 15 Mich App 538, 539; 166 NW2d 820 (1969); see, generally, Torcia, supra, §§ 640, 643, pp 451-454, 463-464.

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O’Connell, J. In this action based on Michigan’s Freedom of Information Act (foia), MCL 15.231 et seq.\ MSA 4.1801(1) et seq., plaintiff challenges the trial court’s ruling that certain documents in defendant’s custody were privileged against disclosure. Plaintiff further appeals, and defendant cross appeals, from the court’s award of attorney fees to plaintiff as a partly prevailing party. We affirm. I. FACTS AND PROCEDURAL HISTORY In a much publicized incident in 1994, plaintiff removed his prematurely bom son from artificial fife support, and the child died shortly thereafter. Defendant prosecuted plaintiff for manslaughter, but the jury returned a verdict of not guilty. Plaintiff subsequently submitted a request under the foia for his entire criminal case file. Defendant complied in part, but refused to disclose many documents on the ground that they came under various statutory exemptions to the requirement to disclose. The trial court examined the disputed documents in camera and ordered the release of some, but concluded that many others, identified as “deliberative materials such as notes or drafts of pleadings or evaluations made by members of the prosecutor’s staff,” were exempt from disclosure. Plaintiff had scheduled a deposition of an attorney who had personally participated in preparations for the prosecution of plaintiff, but the court reasoned that the additional discovery would not assist in its in camera review of the documents in question and so decided the case without allowing the deposition to take place. Because plaintiff partially prevailed in obtaining additional disclosure under the foia, the trial court decided to award plaintiff half of his reasonable attorney fees. In calculating the award, the court accepted plaintiff’s counsel’s representation of fees as concerned most of the proceedings below, but reduced a claim of more than seventy-five billable hours for a motion to adjourn to six hours. Plaintiff argues on appeal that the trial court erred in ruling that all documents reflecting defendant’s deliberative work product were exempt from disclosure under the FOIA, that the court erred in deciding the case before plaintiff had completed discovery, and that the court improperly adjusted downward plaintiff claim of attorney fees. Defendant argues on cross appeal that the trial court failed to assess independently the plaintiff’s reasonable attorney fees attendant to the greater part of this litigation, but instead simply accepted plaintiff’s representations in the matter. n. THE attorney work-product privilege Plaintiff argues that the trial court erred in ruling that certain documents were privileged against disclosure under the FOIA. Whether requested information qualifies for exemption from disclosure under the FOIA is a mixed question of fact and law. On appeal, the trial court’s factual determinations are reviewed for clear error, but its legal conclusions are reviewed de novo. Schroeder v Detroit, 221 Mich App 364, 366; 561 NW2d 497 (1997). A. ORIGINS OF THE DOCTRINE The privilege from disclosure of attorney work product is most closely associated with the liberal discovery rules that attend to litigation in the state and federal courts in this country. “Under this rule any notes, working papers, memoranda or similar materials, prepared by an attorney in anticipation of litigation, are protected from discovery.” Black’s Law Dictionary (6th ed, 1990), p 1606, citing FR Civ P 26(b)(3). The common-law privilege in this state is the product of various decisions and court rules. Our Supreme Court recognized the common-law privilege against discovery of attorney work product in J A Utley Co v Saginaw Circuit Judge, 372 Mich 367, 373; 126 NW2d 696 (1964), restricting the privilege to information arising from the work of a lawyer in furtherance of the “special and personal” attorney-client relationship that “the common law has always protected.” This Court subsequently developed the doctrine further, taking guidance from federal case law: “ ‘[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.’ ” Powers v City of Troy, 28 Mich App 24, 29; 184 NW2d 340 (1970), quoting Hickman v Taylor, 329 US 495, 510; 67 S Ct 385; 91 L Ed 451 (1947). This Court recognized that, under federal and state principles of practice, the balancing of the policy favoring complete discovery and that favoring preserving attorney-client confidences weighed in favor of allowing a party seeking discovery of attorney work product to proceed only upon a showing of substantial need for the materials sought plus inability to obtain the information without undue hardship. Powers, supra at 32-33. This Court further recognized that the state and federal discovery rules have evolved to extend the privilege to include work product prepared by the party personally, or by the party’s insurer, indemnitor, or agent. Id. at 32-34. B. THE DISTINCTION BETWEEN FACTUAL AND DELIBERATIVE WORK PRODUCT The work-product privilege is reflected by MCR 2.302(B)(3)(a). This rule of civil discovery limits access to an opposing party’s work product prepared in anticipation of litigation, whether by the party or the party’s attorney or other representative, to situations where the party seeking discovery demonstrates both a substantial need for the material plus a lack of other reasonable avenues for obtaining it. Where this need is adequately demonstrated, however, the rule nonetheless unconditionally directs that the court “shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Id. This rule is worded not as if to create the privilege for work product, but rather to recognize an existing privilege. Further, the rule’s distinction between factual and deliberative work product comports with a tradition of guarding the latter more zealously than the former, as reflected in federal case law: To the extent that work product contains relevant, non-privileged facts, the Hickman doctrine merely shifts the standard presumption in favor of discovery and requires the party seeking discovery to show “adequate reasons” why the work product should be subject to discovery. However, to the extent that work product reveals the opinions, judgments, and thought processes of counsel, it receives some higher level of protection, and a party seeking discovery must show extraordinary justification. [In re Sealed Case, 219 US App DC 195, 211-212; 676 F2d 793 (1982), citing Hickman, supra at 512.] The rule guarding attorney work product from civil discovery applies equally to the prosecutor’s work product, whether in conjunction with representing the people of the state in criminal proceedings, as chief legal representatives of their respective counties .in all civil and criminal matters, Const 1963, art 7, § 4; MCL 49.153; MSA 5.751, or as the state’s agent for effectuation of the obligations of parens patriae in matters concerning the custody or welfare of children, MCL 552.45; MSA 25.121, MCL 722.533; MSA 25.373. See People v Gilmore, 222 Mich App 442, 453; 564 NW2d 158 (1997). C. APPLICABILITY OF THE PRIVILEGE UNDER THE FOIA Citing various authorities, the court below ruled that the work-product privilege did not apply in the instant case, because the prosecution of plaintiff was concluded and the parties were involved in no actual or contemplated litigation other than the controversy over the FOIA. However, the court concluded that the lack of underlying litigation defeated the work-product exemption only insofar as it concerned factual matters, ruling that “the deliberative materials such as notes or drafts of pleadings or evaluations made by members of the prosecutor’s staff are exempt.” The parties both indicate that the court below did not rely on the attorney work-product privilege for its ruling that certain documents were exempt from disclosure under the foia, stating that the court instead applied a common-law deliberative-process privilege. However, the court, observing that the parties were engaged in no litigation other than the instant controversy, stated that “it appears to me that . . . work product exemption does not apply, at least not to the factual materials,” but later added, “I feel that it is not clear that the deliberative materials are taken out of the exemption.” These statements indicate that the trial court recognized both the work-product privilege and its distinction between factual and deliberative materials, then concluded that under the instant facts defendant’s factual work product was subject to disclosure under the FOIA but defendant’s deliberative work product remained privileged. We hold that a prosecutor’s entire work product is privileged from disclosure under the FOIA. The FOIA is a mechanism through which the citizenry may examine and review the workings of government and its executive officials. The statute has in common with the state’s liberal discovery rules that it came into existence as a manifestation of the trend to disclose information that previously had generally been kept secret. The foia embodies this state’s strong public policy favoring public access to government information, recognizing the need that citizens be informed as they exercise their role in a democracy, and the need to hold public officials accountable for the manner in which they discharge their duties. MCL 15.231(2); MSA 4.1801(1)(2). However, in recognition that imperatives exist for keeping some information from public disclosure, § 13 of the act, MCL 15.243; MSA 4.1801(13), enumerates several exemptions to the duty to disclose. These exceptions are to be construed narrowly, in light of the public policy favoring disclosure. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 231-232; 507 NW2d 422 (1993). The enumerated exemptions cover materials subject to any “privilege recognized by statute or court rule,” subsection 13(l)(i), attorney-client privilege, subsection 13(l)(h), deliberative-process privilege, subsection 13(l)(n), and a privilege applicable to investigating records compiled for purposes of law enforcement, subsection 13(l)(b). When ruling whether exemptions within the foia prevent disclosure of particular documents, a trial court “must determine whether the government has met its burden of proving the claimed exemptions, and must give particularized findings of fact indicating why the claimed exemptions are appropriate.” Newark Morning Ledger Co v Saginaw Co Sheriff, 204 Mich App 215, 218; 514 NW2d 213 (1994). In the instant case, the trial court concluded that defendant’s deliberative work product was privileged under the foia, although it did not expressly indicate which statutory exemption or exemptions it applied in reaching that conclusion. However, the court’s citation of In re Subpoena Duces Tecum to the Wayne Co Prosecutor (On Remand), 205 Mich App 700; 518 NW2d 522 (1994), suggests that the court was applying subsection 13(l)(n), the only exemption at issue in that case. Id. at 705. That provision establishes the following exemption: Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging communications between officials and employees of public bodies clearly outweighs the interest in disclosure----[MCL 15.243(l)(n); MSA 4.1801(13)(l)(n).] This portion of the statute provides a mechanism through which any public body may seek to avoid disclosure of its deliberative process. Although this provision may seem to bear on a prosecutor’s right to avoid disclosure of deliberative work product under the foia, we do not rely on subsection 13(l)(n) to affirm the trial court’s decision. When this Court concludes that a trial court has reached the correct result, this Court will affirm even if it does so under alternative reasoning. See Morosini v Citizens Ins Co of America, 224 Mich App 70, 86; 568 NW2d 346 (1997); Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997). We conclude that the trial court properly withheld the disputed documents from disclosure, albeit under the wrong subsection of the FOIA. We affirm the trial court’s decision to permit nondisclosure of the documents at issue under the exemption articulated in subsection 13(l)(i), covering “information or records subject to . . . privilege recognized by statute or court rule.” As stated above, the attorney work-product privilege, although established principally by case law, is recognized by MCR 2.302(B)(3)(a). That recognition of the privilege by court rule engenders application of that privilege in actions under the foia through subsection 13(l)(i). Accordingly, recognition by subsection 13(l)(i) of the privilege for work product prepared in anticipation of litigation places all such material beyond the reach of the foia. This conclusion follows from careful consideration of various doctrines. As noted, to obtain pretrial discovery of an opposing party’s work product, the requesting party must demonstrate both substantial need and undue hardship, and even upon that showing the seeker may discover only factual, not deliberative, work product. MCR 2.302(B)(3)(a). However, where the issue is disclosure under the foia, generally neither the identity of the requester nor the requester’s need for the information is a relevant con sideration. See Kestenbaum v Michigan State Univ, 97 Mich App 5, 20; 294 NW2d 228 (1980), aff’d by equal division 414 Mich 510; 327 NW2d 783 (1982). Thus, the FOIA is not an appropriate mechanism for addressing the issues of personal need or hardship. The attorney work-product privilege incorporated into the FOIA through subsection 13(l)(i) stands in contrast with the general governmental deliberative process privilege established by subsection 13(l)(n), application of which by its own terms “requires the public body that possesses the records to show that the public interest in disclosure is outweighed by the public interest in encouraging frank communications between officials and the employees of public bodies.” Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 296; 565 NW2d 650 (1997). That exception puts the resisting government agency or official to the test of establishing that the rationale underlying the privilege would be well served by recognizing the privilege under the particular circumstances. In contrast, once a privilege is validly established as applicable under subsection 13(l)(i), there is no obligation to determine, or purpose in exploring, whether the reasons for the privilege are being advanced by its invocation. The assertion of a valid and apposite privilege as authorized by subsection 13(l)(i) ends the inquiry under the FOIA. For these reasons, we affirm the trial court’s decision to allow defendant not to disclose the documents at issue, on the ground that those documents were privileged as attorney work product prepared in anticipation of litigation. D. DISCOVERY Plaintiff argues that the trial court erred in deciding this case before plaintiff’s scheduled deposition of an assistant prosecutor who had participated in preparing the criminal case against plaintiff. We review a trial court’s decision to limit discovery for an abuse of discretion. In re Hammond Estate, 215 Mich App 379, 387; 547 NW2d 36 (1996). Because an assertion of public interest in disclosure cannot overcome the work-product privilege incorporated into the FOIA through subsection 13(l)(i), the trial court was not obliged to permit deposition of the assistant prosecutor in the course of letting plaintiff develop his case for the public interest. Further, public policy imperatives for ensuring the effective functioning of the prosecutor’s office militate against requiring prosecutors to submit to oral discovery concerning their work on a particular case. See Fitzpatrick v Secretary of State, 176 Mich App 615, 617-618; 440 NW2d 45 (1989) (“Department heads and other similarly high-ranking officials should not be compelled to personally give testimony by deposition unless a clear showing is made that such a proceeding is essential to prevent prejudice or injustice to the party who would require it.”); Sheffield Development Co v City of Troy, 99 Mich App 527, 532-533; 298 NW2d 23 (1980) (separation-of-powers principles counsel against judicial inquiry into the individual motivations of officials acting within other branches of government). In this case, even if plaintiff were entitled to argue the public interest in disclosure of the documents at issue, because deposing the assistant prosecutor would have amounted to little more than a “fishing expedition” by plaintiff, the trial court would nonetheless have properly decided the case without allowing that deposition to take place. See In re Hammond Estate, supra at 386-387. m. ATTORNEY FEES A AWARD OF FEES FOR MOTION TO ADJOURN Plaintiff argues that the trial court erred in awarding him only a small portion of the attorney fees he claimed for his filing of a motion to adjourn a summary disposition hearing. We review an award of attorney fees to a prevailing plaintiff in an action under the FOIA for an abuse of discretion. Michigan Tax Management Services Co v City of Warren, 437 Mich 506, 507; 473 NW2d 263 (1991). An abuse of discretion occurs only where a court’s action is so violative of fact and logic as to constitute perversity of will or defiance of judgment. Shanafelt v Allstate Ins Co, 217 Mich App 625, 634; 552 NW2d 671 (1996). When determining the amount of attorney fees to award a party under the FOIA, the trial court must independently assess that party’s reasonable fees. Michigan Tax Management, supra at 511-512. The trial court awarded plaintiff six billable hours for preparation of the motion to adjourn despite plaintiff’s assertion that the motion required 75.5 hours of work, finding plaintiff’s claim unreasonable. Although a more particularized explanation might have been helpful, we are satisfied that the court assessed the matter reasonably in light of the circumstances. Any experienced jurist would properly be suspicious of a claim of over seventy-five horns on a motion to adjourn. Plaintiff’s explanation for the generous claim of attorney’s hours attendant to what is normally a simple motion consists of pointing to the complexity of the issues involved and the need to act aggressively for reasons of timing and strategy. However, the complexities inherent in this controversy did not arise anew at the moment plaintiff wished to adjourn, and a need to work aggressively on behalf of the client has more to do with efficiency and expediency than with piling up hours of service. Because plaintiff demonstrated no unusual circumstances to justify his lavish claim of attorney fees attendant to the motion to adjourn, the trial court evidenced no “perversity of will” or “defiance of judgment” in disregarding plaintiff’s fanciful claim and substituting a figure based on ordinary courtroom experience. B. AWARD OF FEES FOR ALL OTHER PROCEEDINGS On cross appeal, defendant argues that the trial court erred in calculating the remainder of its attor ney fee award to plaintiff by accepting the exact amounts of fees that plaintiff claimed without conducting an independent review of the reasonableness of his claims. A trial court’s assessment of reasonable attorney fees must be more searching than simply approving or disapproving the calculations of others. Michigan Tax Management, supra at 511-512. The following factors bear on the inquiry: “ ‘(1) the professional standing and experience of the attorney; (2) the skill, time and labor [reasonably] involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the chent.’ ” Id. at 509-510, quoting Wood v DAIIE, 413 Mich 573, 587-588; 321 NW2d 653 (1982). In the instant case, the trial court considered the number of documents whose disclosure plaintiff had achieved through the litigation (factor 3), the experience and credentials of all the attorneys and others who worked on plaintiff’s case (factor 1), and the labor and difficulty reasonably involved in advancing plaintiff’s claim (factors 2 and 4). These indications, considered along with the court’s reduction of plaintiff’s claimed fees for the motion to adjourn, show that the trial court adequately examined plaintiff’s claimed attorney fees when fashioning its award. Accordingly, we conclude that the court did not abuse its discretion in calculating the award. IV. CONCLUSION The privilege for attorney work product is recognized by court rule, MCR 2.302(B)(3)(a), and thus incorporated into the FOIA through the latter’s subsection 13(l)(i). Accordingly, when material sought under the foia is identified as attorney work product, that material is not subject to disclosure, and questions of public interest or private need have no bearing on the question. Because all the documents at issue in this appeal fell under the attorney work-product privilege, the trial court properly withheld them from disclosure. Because defendant did not appeal the court’s decision to compel disclosure of defendant’s factual work product, we do not disturb that aspect of the judgment below, including the determination that plaintiff was entitled to an award of attorney fees as a partially prevailing party. The court’s manner of calculating plaintiffs award of attorney’s fees did not constitute an abuse of discretion. Affirmed. Markey, J., concurred. The decision to prosecute was so persistently controversial that it became an issue in the next election for prosecutor, which defendant, the incumbent prosecutor, lost. Because defendant did not choose to appeal the trial court’s decision to order the release of defendant’s factual work product, we do not disturb that aspect of the court’s judgment. However, we caution against reading this opinion as stating that only deliberative materials are exempt from disclosure under the foia under the privilege for attorney work product. Where attorney work product is concerned, this exemption in fact wholly subsumes the deliberative process exemption of subsection 13(l)(n). Deliberative process is obviously a subset of work product. Although any documents that would come under subsection 13(l)(n) would necessarily come under subsection 13(1)00 as well, the latter reaches more broadly, being neither restricted to deliberative materials nor subject to exception upon a sufficient showing of public need for disclosure. We decline to follow the dicta in In re Subpoena Duces Tecum, supra at 706, n 2, suggesting that where the work-product privilege does not apply for purposes of discovery (where a litigant is seeking discovery of the work product of a nonlitigant), the privilege likewise does not apply to requests under the foia. The discovery rule, MCR 2.302(B)(3)(a), provides a limited means through which litigants may discover material that normally enjoys a presumption of confidentiality — attorney work product. The rule recognizes the traditional broad privilege for attorney work product, extends it to cover nonattomey work product prepared in anticipation of litigation, and provides only a qualified exception where persons facing trial show sufficient need and hardship. Thus, the rule’s recognition of the attorney work-product privilege is incorporated into the foia through the latter’s subsection 13(l)(i), but the rule’s mechanism for allowing persons preparing for trial to overcome that privilege is inapplicable in the context of the foia. See Central Michigan Univ Supervisory-Technical Ass’n MEA/NEA v Central Michigan Univ Bd of Trustees, 223 Mich App 727, 730; 567 NW2d 696 (1997) (“The foia is ... a mechanism for the public to gain access to information from public bodies regardless of whether there is a case, controversy, or pending litigation.”). The exception in question, provided by statute, is where the requester under the foia is serving a sentence of imprisonment in a county, state, or federal correctional facility. MCL 15.232(c); MSA 4.1801(2)(c). Where the issue of need does arise under the foia, such as for weighing the public interest in disclosure against the public interest in encouraging frank intraoffice communications, subsection 13(l)(n), or against some individual privacy interest, Kestenbaum, supra at 20, the requester’s case must rest on the public interest in disclosure. A petitioner pursuing purely personal interests, such as preparing for litigation or seeking vindication of reputation, does not state a public need for purposes of the foia. See id. at 23. For the purposes of the foia, this privilege is statutory and may not be coextensive with the deliberative process privilege judicially established for civil litigation. In re Subpoena Duces Tecum, supra at 704-705. Our holding covers all documents at issue in this appeal. Because the trial court examined all documents in dispute and withheld from disclosure only those that reflected the prosecutor’s deliberative process, and because plaintiff has not raised as an issue on appeal the question whether the trial court clearly erred in so identifying any of them, for purposes of this appeal there is no dispute that all documents at issue are attorney work product. However, we do not mean to imply that a prosecutor’s entire file attendant to a case is presumptively exempt from the foia disclosure as attorney work product. To the extent that a prosecutor’s file contains materials other than attorney work product prepared in anticipation of litigation, that file remains subject to disclosure under the foia, subject to the various other statutory exemptions. Defendant opted not to argue on cross appeal that, because all materials in dispute came under the attorney work-product privilege and therefore were exempt from disclosure pursuant to subsection 13(l)(i), the trial court should not have awarded any attorney fees at all. But for plaintiff having prevailed in part in the trial court, there would have been no occasion to award attorney fees at all. Subsection 10(6), MCL 15.240(6); MSA 4.1801(10)(6). Given that the propriety of awarding some attorney fees is not at issue in this appeal, we hold only that the manner in which the' trial court arrived at its award did not constitute an abuse of discretion.

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Per Curiam. In these consolidated cases, plaintiffs appeal by right the Kent Circuit Court Chief Judge’s orders of March 12, 1996, dismissing their claims for their failure to personally appear for a special court-ordered settlement conference. We vacate and remand. These cases arise out of two separate complaints of sexual harassment against defendant filed in 1994. The two plaintiffs hired the same lawyer and are targeting the same employee at defendant’s company. Two different circuit judges presided over these cases, and each case was set for trial after initial settlement conferences held in 1995 did not resolve plaintiffs’ claims. On January 16, 1996, the chief judge ordered all parties to participate in a “Settlement Week” conference, stating that “[c]lients and persons with authority to settle shall be present” and that “[failure to prepare for, attend, or meaningfully participate in this settlement conference may result in the imposition of sanctions.” (Emphasis added.) Counsel for the parties agreed to consolidate the settlement conferences for the two plaintiffs on Monday, March 11, 1996. Neither plaintiff attended the settlement conference. Although plaintiffs’ counsel originally informed his clients erroneously that they need not attend unless he contacted them, he apparently later attempted to reach both clients over the weekend to secure their appearance. Unfortunately, it appears that one client was confused with respect to attending either the Friday or the Monday court dates, and counsel could not timely contact the other. The facilitator conducting the settlement conference informed the chief judge that neither plaintiff was present, but defendant’s counsel and a representative of defendant from out of state were ready to proceed. Immediately, the chief judge, already conducting court on other matters, ordered each case dismissed with prejudice pursuant to MCR 2.401(G)(1) “[b]ecause plaintiff failed to appear for a duly-scheduled and duly-noticed settlement conference, which failure the order scheduling the conference said would result in an adverse judgment.” Plaintiffs moved to set aside the dismissals, but the chief judge denied the motions, finding that under MCR 2.401(G)(1) dismissal would not cause manifest injustice due in large part to the nuisance value awarded to plaintiffs’ claims at mediation and because plaintiffs cannot evade the fault of counsel in advising his clients not to appear. Although plaintiffs raise several issues on appeal, they all boil down to whether the chief judge abused his discretion in dismissing plaintiffs’ claims against defendant because plaintiffs did not attend the court-ordered Settlement Week negotiations. We conclude he did. Because MCR 2.401(F) and (G) give the court discretion to dismiss a plaintiff’s claims for failure to participate in pretrial proceedings, we review for an abuse of that discretion. Indeed, an unbiased person reviewing the evidence would conclude that the trial court had insufficient justification for determining that plaintiffs’ complaints should be dismissed for their inadvertent failure to personally attend the second settlement conference in these matters. See People v McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994) Banaszewski v Colman, 131 Mich App 92, 95; 345 NW2d 647 (1983); see also Jack’s Factory Outlet v Pontiac State Bank, 95 Mich App 174, 178-179; 290 NW2d 114 (1980) (imposition of discovery sanctions under GCR 1963, 313.2, the predecessor of MCR 2.313, also reviewed for an abuse of discretion). MCR 2.401(F) and (G) read as follows: (F) Presence of Parties at Conference. In the case of a conference at which meaningful discussion of settlement is anticipated, the court may direct that persons with authority to settle the case, including the parties to the action, agents of parties, representatives of lienholders, or representatives of insurance carriers: (1) be present at the conference; or (2) be immediately available at the time of the conference. The court’s order may specify whether the availability is to be in person or by telephone. * * * (G) Failure to Attend; Default; Dismissal. (1) Failure of a party or the party’s attorney to attend a scheduled conference, as directed by the court, constitutes a default to which MCR 2.603 is applicable or grounds for dismissal under MCR 2.504(B). (2) The court shall excuse the failure of a party or the party’s attorney to attend a conference, and enter an order other than one of default or dismissal, if the court finds that (a) entry of an order of default or dismissal would cause manifest injustice; or (b) the failure to attend was not due to the culpable negligence of the party or the attorney. The court may condition the order of the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2). [Emphasis added.] Dismissal is the harshest sanction that the court may impose on a plaintiff. Even though the court rules permit the imposition of this sanction in appropriate circumstances, we do not believe that it is either mandated or warranted in the cases at bar. First, the 1996 Settlement Week in the Kent Circuit Court constituted the second settlement conference for both plaintiffs. “Settlement Week” is apparently an effective, innovative attempt that has been held twice in the Kent Circuit Court within a four-year period to resolve certain cases short of trial; however, no court rule specifically authorizes the operation of this intensive, selective settlement effort. Second, it is undisputed that plaintiffs’ counsel had complete authority to settle the cases and engage in meaningful settlement negotiations. Both cases had been pending since 1994, had progressed without any problems and were ready for trial. Importantly, both cases had been mediated and had regular settlement conferences. There is no evidence whatsoever that plaintiffs had historically avoided settlement discussions or had repeatedly ignored court orders. Indeed, the miscommunication and misunderstanding that occurred between plaintiffs’ counsel and plaintiffs was certainly not an intentional act of defiance of a court order, which makes the chief judge’s automatic imposition of involuntary dismissal even more troubling. Third, in a similar context, both this Court and legal commentators have recognized that under MCR 2.313(B)(2)(c), the rule setting forth sanctions for discovery failures, dismissal is warranted only in extreme cases. Although MCR 2.401, unlike MCR 2.313, does not elaborate on the sanction options available to the court for a party’s failure to participate in the litigation process, we believe that the intent underlying both provisions is the same: dismissal, the harshest sanction, should be reserved for the most egregious violations of the court rules. Indeed, the intent of MCR 2.401(F) is to ensure that the parties conduct meaningful settlement talks, which can only be accomplished where “persons with authority to settle the case, including the parties to the action [or] the agents of parties” are in attendance. Because in the case at bar, plaintiffs’ agent, their counsel, had full authority to settle both lawsuits, it appears that the intent underlying the court rule was satisfied. Neither can we read MCR 2.401(G) in a vacuum: it must be interpreted considering the purpose of the entire court rule on settlement conferences. To automatically dismiss a case that had proceeded through the litigation process for approximately two years, had been subject to one previous settlement conference, and had been mediated, merely for a party’s failure to personally appear when no evidence exists that their personal appearance had any bearing on counsel’s ability to settle the case, is an abuse of discretion and an inappropriate attempt to force a settlement. See Henry v Prusak, 229 Mich App 162, 170- 171; 582 NW2d 193 (1998), citing Woods v Murdock, 177 Mich App 210, 213; 441 NW2d 63 (1989). Moreover, we note that the wording of the court order mandating plaintiffs to personally appear advises that failure to attend “may result in the imposition of sanctions.” The manner, however, in which the chief judge summarily ordered dismissal of these two cases was tantamount to a form of “strict liability;” consequently, it was an abdication of the exercise of any judicial discretion. Moreover, once the dismissal was entered, plaintiffs were faced with the burden of moving to reinstate the case pursuant to MCR 2.401(G)(2). Fourth, we believe that entry of the involuntary dismissal was also improper because the chief judge failed to comply with MCR 2.504(B), as incorporated by reference into MCR 2.401(G)(1). According to the parties’ presentation during oral argument, once the facilitator determined that plaintiffs were not going to attend the Settlement Week conference, he merely presented the chief judge with a prepared order for involuntary dismissal of plaintiffs’ claims. The chief judge, who was at the time presiding over another matter, automatically signed the order. MCR 2.401(G)(1) states that a party’s failure to attend a scheduled conference constitutes grounds for dismissal under MCR 2.504(B). Thus, dismissal under MCR 2.401(G)(1) must proceed according to the strictures of MCR 2.504(B)(1), which states that “a defendant may move for dismissal of an action or a claim against that defendant” where the plaintiff fails to comply with the court rules or a court order. (Emphasis added.) MCR 2.504(B) provides no mechanism for a court to dismiss a case sua sponte, nor do we find any evidence in the record that defendant moved to dismiss plaintiffs’ complaints for their failure to personally attend the Settlement Week conference. We doubt that this requirement is a mere technicality, i.e., that if these cases are reinstated, defendant will immediately move to dismiss or, that under these circumstances, defense counsel would have moved to dismiss at the time of the Settlement Week conference. Attorneys use their discretion regarding when to seek sanctions against the opposing party and will frequently opt not to pursue sanctions. We can surmise that that is, in fact, a reason the chief judge automatically dismisses or defaults parties who fail to comply with the exact letter of his Settlement Week order. Here, the chief judge acted on his own initiative, irrespective of the requirements in MCR 2.401(G) and MCR 2.504(B), in dismissing plaintiffs’ complaints. We believe, therefore, that the chief judge misunderstood the extent of his ability to dismiss cases under MCR 2.401(G). Two other issues also warrant our resolution. We consider the chief judge’s decision to review, consider, and, indeed, rely to some extent on the mediation award in ruling on plaintiffs’ motion to set aside the dismissal to have been inappropriate. Under MCR 2.403(N)(4), the mediation clerk places a copy of the mediation evaluation and the parties’ acceptances or rejections in a “sealed envelope for filing with the clerk of the court.” If the trial court is acting as the trier of fact, it may not open the envelope, and the parties may not reveal the evaluation amount until after the judge has rendered judgment. Id. Although an involuntary dismissal operates as an adjudication on the merits, see MCR 2.504(B)(3), as indicated, we have concluded that for several reasons the chief judge improperly entered the involuntary dismissal order, in which case the chief judge was not entitled to review the mediation evaluations, even though he was not the trial judge assigned to either case. It also appears that justifying denial of plaintiffs’ motion to reinstate on this basis was “boot strapping” under these particular facts. In sum, it is manifest that the contents of a mediation evaluation should not have any effect on a trial court’s resolution of the merits of a case. Finally, there is nothing in the chief judge rule, MCR 8.110, that permits a chief judge of a circuit court to temporarily reassign cases to himself for “Settlement Week” only. MCR 8.110(C)(3)(b) expressly permits the chief judge to direct the apportionment and assignment of the court’s business, subject to MCR 8.111 regarding assignment of cases. MCR 8.111 permits a chief judge to reassign cases “in order to correct docket control problems resulting from the requirements of this rule.” MCR 8.111(D)(4). Nonetheless, even if the chief judge could implement Settlement Week under a broad reading of MCR 8.110(C)(3)(b), unsettled cases would remain assigned to their original judges. The chief judge’s interim and temporary reassignment of the cases to himself for the sole purposes of conducting Settlement Week was not authorized under the court rules. Thus, we hold that the chief judge should not have entered any substantive orders in either of these consolidated cases. In conclusion under the particular facts of these cases, we find that the chief judge abused his discretion: an unprejudiced person, reviewing the evidence before the court, would say that there was no justification or excuse for his automatic dismissal sua sponte of plaintiffs’ longstanding complaints. Further, the chief judge should not have entered any substantive orders in these cases that were not properly assigned to him. We therefore vacate the orders of dismissal and the orders denying reinstatement and remand these consolidated cases back to their assigned judges for further proceedings consistent with the court rules. We do not retain jurisdiction. Specifically, the chief judge stated in his order denying plaintiffs’ motions to set aside the dismissal, more accurately, motions to reinstate: What those [nuisance value mediation] evaluations say is that both cases are, in the judgment of seasoned mediators, very weak cases, that neither plaintiff is likely to establish defendant’s liability. MCR 2.403(K)(4). Had plaintiffs appeared, good faith settlement discussions ensued, and settlement not been achieved, each plaintiff would be entitled to continue with this case, even though the prospects for success do not appear good. However, because those prospects are poor, it is not manifestly unjust to now dismiss these cases because plaintiffs and their counsel did not cooperate with the Court. It would, to the contrary, be unjust to reinstate these cases, thereby ignoring a failure to cooperate with the Court and, taking time away from some other case where there had been compliance with court orders. When there are very real questions about the viability of a case, it is not unjust to end that case as authorized by the rules when the plaintiff does not proceed appropriately. It may be that dismissing a strong case is not unjust when the plaintiff has ignored a settlement conference. Efforts to resolve cases are essential to the fair and orderly handling of crowded dockets, and standing up a court may forfeit any right to complain when the rules are enforced. Cf., Hearn v Schendel, 355 Mich 648, 653 [; 95 NW2d 849] (1959). That issue need not be confronted in these cases, however. Dismissing cases which the mediation process has identified as lacking in merit is not unjust. .. . This year’s Settlement Week was equally successful, resulting [in] 55% of the cases summoned, including several which would have taken 6-8 weeks to try and which settled for very large sums of money. Not dealing sternly with plaintiffs’ failures to appear would undermine the effectiveness of an extremely useful tool for preserving access to the courts. It is not merely a matter of expediting settlements or docket control. Good docket management and settlements open up time for those cases which need it. [Emphasis added.] Because it is not our role, we express no opinion regarding whether the Michigan Court Rules should be modified to facilitate the holding of “Settlement Weeks.” While MCR 2.313 is supported by existing caselaw affirming the discretionary power of the court to dismiss an action or to enter a default judgment against a party who fails to comply with the discovery rules or who violates a court order mandating discovery, that same caselaw indicates that those procedural sanctions are a “drastic" step, and should only be imposed for flagrant and wanton actions by a party. The willful, that is intentional, refusal of a party to comply with court ordered discovery would support such drastic steps. [2 Martin, Dean & Webster, Michigan Court Rules Practice, p 367 (emphasis added).] While this error may have been harmless, given the statements that the chief judge made in his order denying plaintiffs’ motion to set aside the dismissal, we continue to believe that it was highly irregular for the chief judge to publicly reveal the mediation award. Neither the mediation briefs nor the mediation evaluation are available to the trial court for its review, so we see no purpose to be served by his review of the evaluation other than to give the appearance that cases with a high mediation award for plaintiffs would be less susceptible to dismissal under MCR 2.401. This untenable appearance should be avoided at all costs. We are aware of at least one recent unpublished opinion of this Court that reaches the opposite conclusion. It lacks precedential value. Moreover, we do not accept either its reasoning or its result. Vanderploeg v Parisian, unpublished opinion per curiam of the Court of Appeals, issued June 5, 1998 (Docket No. 196555).

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Mackenzie, J. This is a class-action suit brought, in relevant part, under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., by female prisoners housed in facilities operated by the Michigan Department of Corrections (mdoc). Defendants are the department, its director, and several wardens, deputy wardens, and corrections officers employed by the MDOC. Defendants appeal by leave granted from a circuit court order denying their motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). We affirm. The case arises out of allegations that male corrections personnel have systematically engaged in a pattern of sexual harassment of female inmates incarcerated by the mdoc. Specifically, plaintiffs’ complaint alleged that the mdoc assigns male officers to the housing units at all women’s facilities without providing any training related to cross-gender supervision; that women are forced to dress, undress, and perform basic hygiene and body functions in the open with male officers observing; that defendants allow male officers to observe during gynecological and other intimate medical care; that defendants require male officers to perform body searches of women prisoners that include pat-downs of their breasts and genital areas; that women prisoners are routinely subjected to offensive sex-based sexual harassment, offensive touching, and requests for sexual acts by male officers; and that there is a pattern of male officers requesting sexual acts from women prisoners as a condition of retaining good-time credits, work details, and educational and rehabilitative program opportunities. The complaint also alleged that the inmates were subject to retaliation for reporting this gender-based misconduct. Plaintiffs claimed that these actions, and defendants’ failure to protect female inmates from this misconduct through adequate training, supervision, investigation, or discipline of mdoc employees, constitute gender-based discriminatory conduct, sexual harassment, and retaliation in violation of the Civil Rights Act. They sought injunctive and declara tory relief, their initial claim for monetary damages having been ordered dismissed. i The purpose of the Civil Rights Act is to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Noecker v Dep’t of Corrections, 203 Mich App 43, 46; 512 NW2d 44 (1993). The act is remedial and must be liberally construed to effectuate its ends. Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993). Article 3 of the Civil Rights Act prohibits discrimination in public accommodations and public services. Subsection 302(a) states: Except where permitted by law, a person shall not: (a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status. [MCL 37.2302(a); MSA 3.548(302)(a)]. Section 103 of the act, MCL 37.2103; MSA 3.548(103), declares that sexual harassment is a form of sex discrimination. Section 301 defines “place of public accommodation” and “public service” as those terms are used in subsection 302(a). It states: (a) “Place of public accommodation” means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public. .. . (b) “Public service” means a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state, a political division, or an agency thereof, or a tax exempt private agency established to provide service to the public. [MCL 37.2301; MSA 3.548(301)]. Finally, § 303 of the act creates an exemption under article 3 for private clubs: This article shall not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages, or accommodations of the private club or establishment are made available to the customers or patrons of another establishment that is a place of public accommodation or is licensed by the state. . . . [MCL 37.2303; MSA 3.548(303)]. In denying defendants’ motion for summary disposition with respect to plaintiffs’ Civil Rights Act claim, the trial court ruled that the mdoc is a “public service” agency prohibited from engaging in gender-based discrimination or harassment under subsection 302(a) of the act. The court further noted that the act does not specifically exclude prisoners from its coverage and declined to read such an exclusion into the act. n The narrow issue before us is whether the mdoc correctional facilities are places of “public service” in which discrimination against inmates, based on sex, is prohibited. The United States Supreme Court’s recent decision in Pennsylvania Dep’t of Corrections v Yeskey, 524 US_; 118 S Ct 1952; 141 L Ed 2d 215 (1998), leads us to conclude that the mdoc facilities are places of “public service” within the meaning of subsection 301(b). The question in Yeskey was whether a state prisoner could maintain a claim against a state department of corrections under another civil rights statute, the Americans with Disabilities Act of 1990 (ada), title II of which prohibits discrimination by a “public entity” against individuals with a disability. 42 USC 12132. The statutory definition of “public entity” at issue in Yeskey is similar to the definition of “public service” set forth in subsection 301(b): “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 USC 12131(1)(B). Writing for a unanimous Supreme Court, Justice Scalia held that “the statute’s language unmistakably includes State prisons and prisoners within its coverage.” 118 S Ct 1954. Emphasizing the broad statutory language, the Court stated that “the ADA plainly covers state institutions without any exception that could cast the coverage of prisons into doubt.” Id. The Court therefore concluded that “[s]tate prisons fall squarely within the statutory definition of ‘public entity’. ...” Id. The Supreme Court’s reasoning in Yeskey applies equally to this case. Under subsection 301(b), a “public service” includes “a public facility, department, agency, board, or commission, owned, operated, or managed by or on behalf of the state . . . .” The MDOC is a state agency, and this state’s correctional facilities are operated by it. Any “exception that could cast the coverage of prisons into doubt,” 118 S Ct 1954, is conspicuously absent from the unambiguous statutory language of the Civil Rights Act. Thus, under the plain language of subsection 301(b), the MDOC clearly falls within the broad statutory definition of a “public service.” Defendants essentially concede as much. Defendants argue that even if the MDOC is a “public service,” its prisons are nevertheless not required to comply with subsection 302(a) of the Civil Rights Act because they fall within the § 303 exemption for “private club[s], or other establishments] not in fact open to the public.” We reject this argument. The fact that the MDOC operates buildings that are not fully open to the public does not mean that the MDOC itself is a “private club or other establishment” not open to the public. There is a distinction between a state agency and the buildings that house that state agency. There are presumably many departments of state government (this Court included) that operate facilities that members of the public may not enter at their will. This, however, does not mean that those departments themselves are private establishments not open to the public; it merely means that the physical structures used by those departments are not fully accessible to the public. Moreover, “[rjesident inmates are obviously members of the public in a general sense.” Martin v Dep’t of Corrections, 424 Mich 553, 565; 384 NW2d 392 (1986) (Cavanagh, J., dissenting). Our Supreme Court has held that prisoners are members of the public for purposes of the governmental tort liability act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Green v Dep’t of Corrections, 386 Mich 459, 464; 192 NW2d 491 (1971). The Supreme Court has also held that prisoners are members of the public for purposes of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Martin, supra, p 555. Civil rights acts are to be liberally construed to provide the broadest possible remedy. Reed, supra. Only by reading “private club, or other establishment not in fact open to the public” in its most restrictive, literal sense, may a correctional facility be deemed to be “not open to the public.” We therefore conclude that the § 303 exemption does not relieve defendants of the obligation to act in conformity with subsection 302(a) of the Civil Rights Act. m Defendants contend that even if the § 303 exemption does not apply to state-run correctional facilities, subsection 302(a) of the Civil Rights Act was not intended to protect prisoners. Again, we disagree. We begin by reviewing the legislative purpose of the Civil Rights Act in general and subsection 302(a) in particular. Const 1963, art 1, § 2 states: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. The Civil Rights Act was enacted as 1976 PA 453. Its purpose was two-fold. First, it was intended to centralize and make uniform the patchwork of then-existing civil rights statutes applying to the private sector, such as the Fair Housing Act, the Fair Employment Practices Act, and the Public Accommodations Act. See Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 187-188; 387 NW2d 821 (1986). Second, it was intended to broaden the scope of the then-existing civil rights statutes to include governmental action: [T]he Legislature’s addition of “public service” to [subsection] 302(a), thereby including state action violations that amount to constitutional deprivation with private sector, non-state action legislative violations, can be explained by the fact that article 1, § 2 of the Michigan Constitution provides: “the legislature shall implement this section by appropriate legislation.” It is the only provision of the Declaration of Rights to provide so. [Id., p 188 (emphasis in the original).] Thus, insofar as subsection 302(a) of the Civil Rights Act governs “public service,” it is essentially a codification of the constitution’s Equal Protection and Antidiscrimination Clauses, broadened to include categories not covered under the constitution, such as age, sex, and marital status. See Dep’t of Civil Rights, pp 188-189. The constitutional equal protection guarantee applies to prisoners. As explained in Jackson v Bishop, 404 F2d 571, 576 (CA 8, 1968): Lawful incarceration may properly operate to deprive the convict of certain rights which would otherwise be his to enjoy. A classic example is [the] denial to the felon of the right to vote. . . . On the other hand, a prisoner of the state does not lose all his civil rights during and because of his incarceration. In particular, he continues to be protected by the due process and equal protection clauses which follow him through the prison doors. [Citations omitted.] Because, as our Supreme Court has stated, the protections of subsection 302(a) of the Civil Rights Act were intended to be coextensive with the Equal Protection and Antidiscrimination Clauses of the Michigan Constitution, and because prisoners do not lose their right to equal protection by virtue of their status as inmates, we can only conclude that the Legislature also intended all persons — including inmates — to be protected under subsection 302(a). Further, as noted by the trial court, nowhere does the language of the Civil Rights Act purport to preclude its application because of a person’s status as a prisoner or inmate. Compare Walters v Dep’t of Treasury, 148 Mich App 809, 819; 385 NW2d 695 (1986); Marsh v Dep’t of Civil Service, 142 Mich App 557, 569; 370 NW2d 613 (1985). When the Legislature has seen fit to exclude prisoners from the provisions of a statute, it has specifically done so. See, e.g., MCL 15.231(2); MSA 4.1801(1)(2), excluding “those persons incarcerated in state or local correctional facilities” from provisions of the Freedom of Information Act. A court must not judicially legislate by adding into a statute provisions that the Legislature did not include. Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 421; 565 NW2d 844 (1997). Accordingly, we decline to read into the Civil Rights Act an exclusion barring prisoners from bringing an action under subsection 302(a). IV Defendants suggest that any holding that the Civil Rights Act applies to prisoners will unacceptably impair the MDOC’s corrections responsibilities. Their fear is unwarranted. At least to the extent that a state agency’s conduct is at issue, the protections of subsection 302(a) of the Civil Rights Act were intended to be coextensive with those of the Antidiscrimination and Equal Protection Clauses of the constitution. Dep’t of Civil Rights, supra, p 188. As our Supreme Court stated in Dep’t of Civil Rights, supra, p 189: Discrimination, in constitutional terms, refers to baseless and irrational line drawing. . . . When there is a sufficiently important governmental interest and the classification is adequately related to that interest, it does not amount to discrimination to draw legislative lines on the basis of those classifications. It would be anomalous at best and contradictory at worst to attempt to rid the state of discriminatory practices by the use of an arbitrary standard that would prohibit, in effect, any line drawn between the genders, regardless of its relevance to the purpose of the regulation, unless the Legislature, in its wisdom and its own good time, countervails it. Thus, even though we hold that subsection 302(a) prohibits the MDOC from engaging in discriminatory practices in the operation of its correctional facilities, the MDOC may still treat prisoners differently on the basis of gender, provided that the gender-based treatment can pass constitutional muster. As the Court acknowledged in Dep’t of Civil Rights, merely because the state engages in a practice that treats men and women differently, it does not necessarily mean that it engages in unlawful gender discrimination. Rather, the test is whether the gender-based treatment serves a sufficiently important governmental interest and is substantially related to the achievement of that interest. Dep’t of Civil Rights, supra, p 189. The MDOC may therefore treat prisoners differently on the basis of gender without violating subsection 302(a), as long as the gender-based treatment serves important penological interests and is substantially related to the achievement of those interests. This approach to state sex discrimination claims by inmates mirrors not only the analysis employed in equal protection cases, but also the analyses typically employed by federal courts in 42 USC 1983 actions. See anno: Sex discrimination in treatment of jail or prison inmates, 12 ALR4th 1219. Because the MDOC admits that prisoners may bring equal protection claims under § 1983, our holding that prisoners are not excluded from the protections of subsection 302(a) of the Civil Rights Act should impose upon defendants no stricter standards than those to which they must presently adhere in order to survive either a constitutional or § 1983 challenge. v Finally, defendants argue that the Court of Claims, not the circuit court, had subject-matter jurisdiction over plaintiffs’ case. While it is generally true that the Court of Claims has exclusive jurisdiction over “all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state” or any of its agencies, MCL 600.6419(l)(a); MSA 27A.6419(l)(a), that exclusivity does not extend to Civil Rights Act claims. MCL 37.2801(1); MSA 3.548(801)(1); Rangel v Univ of Michigan, 157 Mich App 563, 564-565; 403 NW2d 836 (1987). Moreover, a complaint against the state seeking only equitable or declaratory relief must be filed in the circuit court. Watson v Bureau of State Lottery, 224 Mich App 639, 643; 569 NW2d 878 (1997), Silverman v Univ of Michigan Bd of Regents, 445 Mich 209, 217; 516 NW2d 54 (1994). Because plaintiffs no longer are seeking money damages, the circuit court, rather than the Court of Claims, had jurisdiction to consider the Civil Rights Act claims, as well as the remaining equitable and declaratory claims against the mdoc and defendant McGinnis in his official capacity as the director of the MDOC. The circuit court also had jurisdiction over plaintiffs’ Civil Rights Act claims against the remaining individual defendants. MCL 600.6419(l)(a); MSA 27A.6419(l)(a). Moreover, the defendant guards and wardens are not state officers who may be sued in the Court of Claims. Lowery v Dep’t of Corrections, 146 Mich App 342, 349; 380 NW2d 99 (1985); Burnett v Moore, 111 Mich App 646, 648-649; 314 NW2d 458 (1981); Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981). Accordingly, we find no error in the circuit court’s ruling that it had jurisdiction to hearing plaintiffs’ claims. Affirmed. Gage, J., concurred.

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Sharpe, J. In 1922, Stephen Parrish and his wife and Elizabeth Hammerschmidt owned adjoining lots in Giddings’ addition to the city of Grand Rapids. Mrs. Hammerschmidt was preparing to build a garage on her lot. The building where she proposed to erect it so as to gain access thereto from her own premises would obstruct the view from the residence of the Parrishes to Wealthy street. A written agreement was thereupon executed, wherein Mr. and Mrs. Parrish as first parties did let and lease to. Mrs. Hammerschmidt as second party for a period of 99 years “the right to the use jointly with the said first parties” of an automobile driveway for passenger automobiles. The second party agreed therein to “do no parking upon the said premises” and not to “erect any building upon their adjoining premises so as to obstruct the view from the residence of the said first party to Wealthy street, S. E., in said city of Grand Rapids.” It contained the usual provision: “To have and to hold the said premises as above described, unto the said party of the second part, and to her heirs and assigns.” After this agreement was executed, Mrs. Hammerschmidt built her garage with room therein for two machines, and it has been occupied, one part of it continually by an outside party, since that time. On April 10, 1925, Mrs. Hammerschmidt sold her lot to the defendants Heskett, and in writing assigned to them her interest in the lease. After the death of Mr. and Mrs. Parrish, the plaintiffs, Harry B. and Beulah T. Parrish, sold their lot under contract to the plaintiff Church. Heskett rented the use of the garage for one machine from month to month to the defendant Maddox in 1925, and he has used the driveway in question to reach it without interruption until shortly before the commencement of this suit. Some altercation arose between Mr. Heskett and Mr. Church over the latter parking his car along the driveway, which led not only to a war of words but to a fistic encounter between them. Soon thereafter this suit was begun. .Plaintiffs pray for a decree enjoining the Hesketts from permitting any other persons than themselves to use the driveway, and restraining Maddox from using it. The trial court dismissed the bill, and plaintiffs appeal. The purpose of the easement created by the lease was to permit access over the Parrish driveway to the garage Mrs. Hammerschmidt intended to erect. She was not building this garage for her own use, as she had no machine at that time. The lease created an easement appurtenant to her lot, and passed from her to Heskett. Smith v. Dennedy, 224 Mich. 378. Under it her tenants had the right to its use, and such right passed to Maddox under his lease from Heskett. 9 R. C. L. p. 817; 19 C. J. p. 977. The decree is affirmed, with costs to appellees. North, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Chief Justice Flannigan and the late Justice Bird took no part in this decision.

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McDonald, J. The plaintiffs filed this bill to set aside two deeds of conveyance of real estate located in Reading, Hillsdale county, Michigan. The first deed is from Samuella Webster to one Allen G. Ludington. The second deed is from Allen G. Ludington to Samuella Webster, George C. H. Doney, and Lura Doney, his wife. The deed to Mr. Ludington was made so that he might reconvey to the other parties in joint tenancy. Both deeds were executed on the 14th day of March, 1922, and were recorded April 4, 1922. • The theory of the bill is that, at the time of the .conveyances, Samuella Webster was mentally incompetent to convey the property and was unduly influenced by the defendants. When these deeds were executed, Samuella Webster was the widow of Lester Webster, from whom she received the property. Later she married the plaintiff, Edwin Coy. The other plaintiff, Mary L. Kugler, is her niece. The plaintiffs are devisees under the will of Samuella Webster-Coy, and as such bring this action to have the deeds set aside so that the property may be returned to the estate. The defendants are husband and wife. Mrs. Doney was a relative of Mrs. Coy’s former husband, Lester Webster, deceased. On the hearing, the. circuit judge found that at the time of the conveyances Samuella Webster was mentally incompetent and was unduly influenced by the defendant George C. H. Doney. He entered a decree setting aside the con veyances. From this decree the defendants have appealed. After hearing the testimony, the circuit judge filed an opinion as a basis for his decree, in which he said in part: “At this time Samuella Webster was not insane as that term is ordinarily used. As applied to the ordinary affairs of ’her life she was mentally competent, but as applied to business matters she was incompetent to act to protect her own interests, and, as put by Dr. Sladen of the Ford Hospital, she needed some one in whom she could trust to guide and advise her. This is made plain by the fact that she was relieved from her position as administratrix of her husband’s estate due to her incapacity to grasp to any appreciable extent the details of administration*, and the further fact that she was, within ninety days of the date of the conveyances complained of, placed under guardianship, so far as her business affairs were concerned. That, at this time, she was under the fear and control of George C. H. Doney is plainly established; that anything he wanted her to do she did through fear.- “To all appearances, the attitude and conduct of the defendant toward Mrs. Webster, at this time, was kindly, yet one cannot read this record without reaching the conclusion that such attitude and conduct were exercised with an ultimate design upon the property of Mrs. Webster. The actions of defendant George C. H. Doney were not such as should be expected of a trusted friend and guide, one acting in- a close fiduciary relation. The fact that he manipulated the transfer of the automobile and signed her name to the application, and the further fact that he used her own funds, that came to his hands in his fiduciary capacity, with which to put permanent improvements upon property which was ultimately to become his, are evidences of overreaching which a court of equity should not overlook.” The question involved is merely one of fact. It would serve no useful purpose for us to extend this opinion by an analysis of the testimony of the various witnesses. After seeing the witnesses and hearing them testify, the circuit judge determined the issue against the defendants. We have read the record and approve of his conclusions. The decree is affirmed, with costs to the plaintiffs. Clark, Bird, and Sharpe, JJ., concurred.

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Flannigan, J. Defendant Owen was charged with breaking and entering the dwelling house of one Bert Moyer in the nighttime with intent to commit the crime of larceny. The Moyer home is located about 3 miles east of Vicksburg in Kalamazoo county, and is 27 miles from Battle Creek. The property stolen consisted of 2 cans of peppermint oil worth between $400 and $500 and an automatic shotgun. Defendant was convicted and the case is here on exceptions before sentence. The officers investigating the burglary concluded John and Milo Culp were concerned in it. They were arrested and confessed, implicating defendant and one Bert Dabbs. When arraigned 'at the circuit they pleaded guilty and when defendant was brought to trial they were in custody awaiting sentence. They testified as witnesses for the people. Evidence offered by the people was ample to support a finding that all four were present, aiding, abetting, and assisting each other in the commission of the burglary, and that defendant, with the assistance of Dabbs, "broke and entered the house and brought out the property, or that he stood guard on the outside to give warning of the approach of danger. It is undisputed the stolen oil was found in the possession of defendant the following day. The defense was alibi. Defendant introduced testimony tending to show he was at Battle Creek, where he resides, when the burglary was committed. The case was tried on the theory defendant was present at the scene of the crime and personally assisted in its commission. The jury was instructed, in substance, a conviction would be warranted if they found the breaking and entry of the building with intent to steal was the joint undertaking of the four, and that defendant was present with the others when the burglary was accomplished, whether he entered the house or stationed himself on watch outside. With this instruction no fault is found. In a supplementary charge, delivered after the jury had been out for a time and returned to the courtroom for further instruction, the court correctly defined an accessory before the fact; pointed out that the common-law distinction between accessories before the fact and principals had been abrogated by statute, and that persons who aided and abetted the commission of a felony, though not personally present, might lawfully be convicted and punished as principals, and instructed that, if they found defendant was not present at the scene of the crime, they were, nevertheless, at liberty to convict if they further found the burglary was jointly undertaken by him and the others; that he helped plan and arrange for its commission and aided, abetted, and encouraged the others to commit it. To the submission at this stage of the trial of an alternative theory of guilt no exception was taken, but error was properly assigned on the instruction on the ground there was no evidence tending to show defendant an accessory before the fact. At common law, an accessory before the fact is one who was not present, actually or constructively, when the offense was committed, but who counseled, procured, or commanded another to commit it. 16 C. J. p. 134; 1 Wharton’s Criminal Law (11th Ed.), p. 335. Where, as with us, the distinction between ac cessories before the fact and principals is abrogated by-statute so that participants in a crime who would be accessories before the fact at common law are called and punished as principals, it is still necessary to apply the common-law rules in order to determine whether a person who is absent when a crime is committed by another is guilty as a principal under the statute. 16 C. J. p. 134. Assuming the burglary was committed by Dabbs and the Culps, to hold defendant an accessory before the fact, it was essential to establish he counseled, encouraged, or urged them to commit, or in some way aided in the commission of the offense; and that he was not present at its commission. There was evidence tending to establish the element of absence. If, as they had a right to do, they believed the testimony introduced by defendant, the jury was justified in finding he was not present at the commission of the crime, but at Battle Creek, 27 miles away. For the purposes of this discussion, it is proper to assume they did so find. Save for the fact defendant was in possession of the stolen oil within 24 hours after the burglary, for evidence tending to connect him as an accessory before the fact, the sole reliance of the people is upon the witness John Culp. Inspection ‘of his testimony fails to disclose any such evidence. It appeared the witness and defendant were acquainted and once roomed together. August 21, 1926, the day of the burglary, the witness was employed as a truck driver. He quit work at noon, but returned about 1:30 p. m. and took the truck without his employer’s permission. Regarding his subsequent movements that afternoon until he drove out of Battle Creek, he testified: “At 1:30 I went down to my folks’ and stayed there about two hours. No one with me. Then I went to 40 Green street (his rooming house) and saw nobody but the landlady. From there I went .down on Jackson street and saw Harold Owen and Bert Dabbs. I went to Owen’s restaurant in search of Mr. Dabbs. * * * I remained there a half hour. * * * About 4 o’clock I went out and drove up on Upton avenue to get some gasoline. Harold Owen and Bert Dabbs went with me. * * * I got some gas on Upton avenue and went from there to Harold’s house (on Upton avenue) and then back down to the restaurant again. * * * After we drove down town we started out Lake avenue for Vicksburg. I should judge it was then right around a quarter of five. * * * The reason we started off toward Vicksburg in quest of oil is that on the Saturday night before, Bert Dabbs asked him (Milo Culp who was working in the Moyer neighborhood) if he knew anybody who had oil out there. * * * He (Milo) said he didn’t know. * * * Before I left Battle Creek and started for Vicksburg Mr. Owen and I had a talk about where we were going. He said he was going out and try to find some oil. * * * I am the man who furnished the car, furnished the gas and furnished the lunch for this expedition.” The foregoing comprises all the witness testified was said or done by the parties until they separated, defendant, as the jury presumptively found, remaining in Battle Creek, and Dabbs and the witness, in the truck surreptitiously obtained, drove away in the direction of the Moyer residence. Their inquiry of Milo Culp, who did not know of the location of peppermint oil, but who did know that “Bert Moyer was the nearest place that raised it,” and the evidence connecting them with the commission of the offense, justifies the inference Dabbs and the witness, who were rooming together at the time, planned while at Battle Creek an invasion of the Moyer home with intent to steal any oil there found. But if they did it dees not appear by the testimony of John Culp,, or elsewhere in the record, they communicated their intention to defendant, or that he otherwise learned of their criminal purpose; or encouraged them to commit this or any burglary or larceny; or agreed to receive the fruits of any burglary or larceny committed by them; or that a joint enterprise having for its object acquisition of peppermint oil or other form of personal property by criminal means was mentioned by Dabbs or Culp to defendant or by him to them while together at Battle Creek, or previously. If defendant said, as claimed, he was “going out and try to find some oil,” it was in form an innocent declaration. Standing alone, it was consistent with a purpose to obtain oil legitimately rather than illegitimately. Disassociated, as on this branch of the case it must be, from the evidence tending to show his presence at the commission of the offense, the remark is devoid of criminal tinge. Certainly it may not be construed as a suggestion or request they burglarize for oil in his absence for the joint benefit of all three. Considered in connection with the evidence showing defendant’s presence and personal participation, as it might be on the other branch of the case, the remark and all other of the sayings and doings of the parties at Battle Creek would be of weighty significance. But, as serving to connect defendant with its commission when his absence from the scene of the crime is taken for granted, the testimony relied upon by the people becomes colorless. In cases where there is other evidence tending to show the accused an accessory before the fact to a burglary, the jury may consider in connection with it possession by him of the property stolen. But where, as in this case, there is no such other evidence, possession is without probative force. Where the charge is larceny a different rule is applied. People v. Gordon, 40 Mich. 716; Stuart v. People, 42 Mich. 255; People v. Sligh, 48 Mich. 54; People v. McDonald, 163 Mich. 552. In the state of the evidence the instruction excepted to should have been omitted. A count was added, charging defendant under 3 Comp. Laws 1915, § 15293, with breaking and entering the house in the daytime with intent to commit larceny. Defendant’s counsel moved to compel an election between counts, and error is assigned on the refusal of the court to grant the motion. This court has frequently held election between counts cannot be required on the ground distinct offenses are charged where they are committed at the same time and are covered by the same testimony. People v. Warner, 201 Mich. 547, and cases cited. There is no good reason why a different rule should be applied where the distinct offenses spring out of the same transaction and are covered by the same testimony and where guilt of the accused of the one offense or the other depends merely on whether the criminal acts were committed in the daytime or nighttime. The remaining assignments of error have been considered. A number of them are clearly without merit, and such as may be debatable are not likely to arise on another trial. For the error pointed out the conviction is reversed, and a new trial granted. Sharpe, C. L, and Bird, Fellows, Wiest, Clark, and McDonald, JJ., concurred. The late Justice SNOW took no part in this decision.

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Williams, J. Introduction Defendants, by motion, challenged the continuing validity of the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4) in face of "the adoption of the doctrine of pure comparative negligence in Michigan. Placek v Sterling Heights, 405 Mich 638 [275 NW2d 511] (1979). MCL 600.2949 [MSA 27A.2949, 1978 PA 495 — comparative negligence for products liability]”. The ultimate issue, as posited by both plaintiff and defendants, is, in the words of the former’s brief, whether a "verdict rendered against jointly liable defendants is reduced by an amount proportionate to a settling tortfeasor’s percent of negligence [as the defendants and the circuit judge say the doctrine of pure comparative negligence requires] rather than the amount of the settlement [as plaintiff and the contribution-release statute indicates the law requires]”. (Emphasis added.) The defendants argue: "The entire concept of comparative negligence is premised on the concept that fault can be allocated. If fault can be allocated as between a plaintiff and defendants, there is absolutely no logical distinction between that and the allocation of fault as between tortfeasors.” The defendants also argue: "With lack of legislative guidelines following the adoption of comparative negligence, in reaching a decision, this court must look to * * * Conkright”. Conkright v Ballantyne of Omaha, Inc, 496 F Supp 147, 152 (WD Mich, 1980) stated: "I believe that Michigan will adopt an approach under which the comparative fault of a defendant dismissed pursuant to a settlement is determined by the finder of fact, and this proportion of fault is employed to reduce plaintiff’s recovery against nonsettling defendants.” (Footnote omitted.) To begin with, while we do recognize that there is a reasonable relationship between comparative negligence and comparative contribution based on degree of fault, we likewise find that there is no such absolute incompatibility between the two concepts that they cannot coexist. See West v Rollhaven Skating Arena, 105 Mich App 100; 306 NW2d 408 (1981); Bacon v Dep’t of State Highways, 115 Mich App 382; 320 NW2d 681 (1982). Furthermore, we recognize that the law does not contemplate judicial abrogation of constitutional legislative enactments because not reasonably re lated to a judicial decision. Finally, we find no "lack of legislative guidelines” as to legislative intentions concerning comparative contribution based on fault, both prior and subsequent to Michigan’s adoption of comparative negligence. Following these guidelines, we hold that the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4) is still viable. We therefore reverse the judgment of the circuit court. I. Facts This suit arises out of an automobile accident that occurred on June 10, 1976. Deonna Zech was traveling on Grand Mere Road in North Lake Park, Lincoln Township, Berrien County, when her automobile went out of control and struck a guardrail. David Mayhew, who was standing by the creek fishing, was struck by the guardrail, and he fell into the water. As a result, he suffered severe brain damage and other injuries. . David’s mother, Shirley Mayhew, commenced an action against the Berrien County Road Commission and Lincoln Township under negligence and intentional nuisance theories on January 18, 1978. Plaintiff settled with the driver of the automobile before the instant suit was commenced. The amount of the settlement was stated in oral argument to be $50,000, the maximum possible recovery under the driver’s insurance policy. Defendants filed an answer and asserted as an affirmative defense that the negligence of the settling party was a proximate cause of the injury and, thus, their liability should be reduced by the extent of the settling tortfeasor’s negligence. On June 13, 1980, defendants filed a motion for appor tionment of damages among tortfeasors. The trial judge granted the motion on June 18, 1980, and ordered that "the jury be instructed to apportion fault, by percentage, among all those whose fault is found by the jury to have been a proximate cause of the accident and the injuries sustained by David Mayhew, including not only the parties to this action but also including the fault of Deonna Lynn Zech”. The judge further ordered that "the amount of damages, if any, assessed by the jury be reduced by the court by the percentage of fault apportioned to persons other than the defendants and that judgment be entered for the reduced amount”. The judge also stated that the judgment would be joint and several if both defendants were found liable, but that there would be a right to contribution. An application for leave to appeal was filed in the Court of Appeals on September 22, 1980. An application for leave to appeal prior to decision by the Court of Appeals was filed in the Supreme Court on November 3, 1980. Before any action was taken on the applications, plaintiff filed a motion for partial rehearing in light of Weeks v Feltner, 99 Mich App 392; 297 NW2d 678 (1980), but the trial court felt that Weeks did not alter its original order. The Court of Appeals, however, vacated the circuit court’s order of June 18, 1980, and remanded for reconsideration in light of Weeks. The circuit court, on May 22, 1981, reiterated its belief that Weeks did not govern the situation present in the case at hand. An appeal was taken from the circuit court’s instruction on comparative negligence, and, on August 20, 1981, we granted leave to appeal prior to a decision by the Court of Appeals. 411 Mich 1035 (1981). II. Defendants’ Theory Defendants base their argument for comparative fault on the theory that when the State of Michigan adopted the doctrine of comparative negligence, the state, of necessity, adopted the corollary, comparative fault. Furthermore, the defendants argue that comparative fault must apply to all tortfeasors, including settling tortfeasors, which means that plaintiffs total damage recovery must be reduced by the settler’s proportionate share of fault rather than the value of the settlement. In passing, it should be noted that the adoption of comparative negligence in Michigan, judicially by Placek in 1979 and législatively for products liability in 1978, was subsequent to the commencement of this matter on January 18, 1978. The importance of this is that the parties recognize that the current state of the law, rather than the state of the law existing at the time of the accident, controls the conduct of this case. There is no question but that defendants’ argument is not without logic. However, it confronts two stubborn legislative facts. First, as to comparative fault, MCL 600.2925b; MSA 27A.2925(2), at the time of the accident and also commencement of the action, provided in pertinent part: "(a) Their relative degrees of fault shall not be considered.” (Emphasis supplied.) In other words, the Legislature specifically proscribed comparative fault. Second, MCL 600.2925d; MSA 27A.2925(4), in pertinent part, at that time provided and now provides: "When a release * * * is given in good faith * * * [i]t reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release * * * or to the extent of the amount of the consideration paid for it, whichever amount is the greater.” In other words, the Legislature provided and now provides that the total share of damage liability of non-settling tortfeasors should be the entire amount of damages minus the value of the settlement rather than minus the proportionate share of fault of the settling tortfeasor. Confronted with these facts, defendant road commission argued: "The imposition of this [release] statute, which predates comparative negligence, upon a comparative negligence system is ill-conceived and illogical. In no fashion can MCL 600.2925d; MSA 27A.2925(4) be treated as a 'legislated answer’ * * * to the question posed to this Court. An answer cannot logically predate the question.” Both defendants relied on Conkright v Ballantyne of Omaha, Inc, 496 F Supp 147, 152 (WD Mich, 1980), which, in the absence of Michigan judicial precedent and alleged absence of legislative guidelines, attempted to predict the way Michigan law was most likely to evolve as follows: "I believe that Michigan will adopt an approach under which the comparative fault of a defendant dismissed pursuant to a settlement is determined by the finder of fact, and this proportion of fault is employed to reduce plaintiffs’ recovery against nonsettling defendants.” The circuit court’s disposition of the motion in this case, delivered orally, specifically recognized and quoted the statute prohibiting consideration of degrees of fault, MCL 600.2925b; MSA 27A.2925(2), but did not refer to, or consider, the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4). That court preferred to rely on Jorae v Clinton Crop Service, 465 F Supp 952 (ED Mich, 1979), and on Greenwood v McDonough Power Equipment, Inc, 437 F Supp 707 (D Kan, 1977), and reached the conclusion that the joint liability of non-settling tortfeasors would be the amount of the verdict reduced by an amount proportionate to a settling tortfeasor’s percent of fault. III. Analysis Because of 1982 PA 147, this Court has the advantage of pertinent legislation subsequent to that available to the circuit court and the parties. Prior to 1982 PA 147, MCL 600.2925b; MSA 27A.2925(2), as above noted, provided: "(a) Their relative degrees of fault shall not be considered. ” (Emphasis supplied.) 1982 PA 147 amended subsection (a) above to read: "(a) Their relative degrees of fault shall be considered. ” (Emphasis supplied.) In other words, by 1982 PA 147, the Legislature specifically adopted comparative fault. As a consequence, it is unnecessary for this Court to determine whether or not Placek and the comparative negligence for products liability statute, MCL 600.2949; MSA 27A.2949, require a corresponding change to comparative fault in contribution, since the Legislature itself adopted comparative fault in contribution. But the legislative adoption of comparative fault does not necessarily answer the ultimate question in this matter, namely whether the contribution-release statute, MCL 600.2925d; MSA 27A.2925(4), has been superseded by Placek or by legislative action. For convenience, we repeat the pertinent statutory language: "When a release * * * is given in good faith * * * [i]t reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release * * * or to the extent of the amount of the consideration paid for it, whichever amount is the greater.” As a matter of fact, when the Legislature, by 1982 PA 147, amended § 2925b and did not amend § 2925d of the contribution between joint tortfeasors section of the Revised Judicature Act, the Legislature gave this Court a strong signal that it intended § 2925d to remain viable rather than be superseded by inference by Placek or the products liability comparative negligence statute, MCL 600.2949; MSA 27A.2949. We acknowledge that signal and hold § 2925d to be still viable. From this, we conclude that the circuit court adopted the wrong formula in determining the liability of the defendant joint tortfeasors. That court considered the liability to be the total liability of all the joint tortfeasors minus the proportionate liability of the settling tortfeasor; however, §2925d provides, and this Court holds, that the liability of the defendant non-settling tortfeasors is the total liability of the joint tortfeasors minus the amount of the settlement of the settling tortfeasor. Furthermore, the legislative intention expressed in MCL 600.2925d; MSA 27A.2925(4) is in line with this Court’s policy to encourage settlements. While allocation of liability by the tortfeasors’ relative degree of fault is an important goal, it must be considered with the important goal of encouraging settlements. Recognition of both goals is best achieved by reducing the claim against the other tortfeasor by the amount of settlement, as provided by § 2925d. Since California, as Michigan, also adopted comparative negligence judicially, Li v Yellow Cab Co of California, 13 Cal 3d 804; 119 Cal Rptr 858; 532 P2d 1226 (1975), it is interesting to review how it has handled the issue of comparative fault among joint tortfeasors. In American Motorcycle Ass’n v Los Angeles County Superior Court, 20 Cal 3d 578, 604; 146 Cal Rptr 182; 578 P2d 899 (1978), the court reviewed the issue and concluded that the common-law equitable indemnity doctrine should be modified to permit a right of partial indemnity on a comparative basis. The court stated that the contribution statutes did not prevent it from developing the common-law right of comparative indemnity. As we have already remarked, this Court was not confronted with having to consider the possibility of doing this, because the Michigan Legislature adopted comparative fault during the pendency of this appeal. In American Motorcycle Ass’n, it was made clear that joint and several liability was not and need not be abolished because of the adoption of comparative negligence, a matter not contested in the instant case. With particular relevance to the instant case, the California Supreme Court concluded in obiter dictum, "that a plaintiffs recovery from nonsettling tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor’s proportionate responsibility for the injury”. 20 Cal 3d 604. The court reasoned that this approach would be more likely to preserve the incentive to settle claims than would a reduction based on the percentage of fault attributable to the settling tortfeasor. By our decision we agree that the approach taken in California is the most appropriate one and that the verdict rendered by the jury should only be reduced by the amount of settlement, not by the percentage of fault. This is consistent with the ever-important policies of (1) encouraging settle ments and (2) assuring that a plaintiff is fully compensated for injuries sustained. Furthermore, numerous difficulties would be presented if we were to allow the jury to apportion damages among all tortfeasors, including a settling non-party. It would mean that the settling tortfeasor’s liability would be assessed without anyone adequately representing that interest. It would put the plaintiff in a unique trial situation. The plaintiff would not only have to advocate that he was not at fault, he would have to convince the jury that the non-party was only minimally at fault. Otherwise, there might be too great a percentage of fault attributed to the non-party, thus reducing the plaintiff’s recovery. Defendants argue that unless the jury is able to allocate fault among all the parties, collusive dealing between a plaintiff and the settling party will be inevitable. While the opportunity for collusion is always present, the contribution statute, § 2925d, attempts to minimize this problem by requiring a good-faith settlement. There is no reason to believe that this approach will generate any more collusive dealing than may have occurred in the past. We are not persuaded that the judgment should be reduced by the percentage of relative fault as opposed to the amount of settlement. We hold that § 2925d survives the adoption of comparative negligence by this Court. The judgment of the circuit court is reversed. Fitzgerald, C.J., and Kavanagh, Levin, Coleman, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J. "When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 or 2 or more persons liable in tort for the same injury or the same wrongful death: "(a) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide. "(b) It reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater. "(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.” The court in Conkright, while accepting the correlation of comparative negligence and comparative fault, expressly limited its decision to products liability cases and did not decide what effect Placek had on principles of contribution in other areas of tort law. 496 F Supp 150, fn 3. The products liability field is specifically covered by statute. MCL 600.2945-600.2949; MSA 27A.2945-27A.2949. In Weeks, the defendants requested, and were denied, a jury instruction requiring the jury to apportion damages among the various defendants. The Court of Appeals stated that the doctrine of comparative negligence seeks to assure fair and adequate compensation for injured plaintiffs. The Court also stated that while there may be some unfairness in holding the defendants responsible for the fault of their codefendants, this result may occur whether the plaintiff is at fault or not. The court concluded that the doctrine of comparative negligence does not mandate abandonment of joint and several liability. 99 Mich App 395. The trial court did not find Weeks dispositive of the issue presented here, because the issue regarding a settling tortfeasor and the manner in which to reduce the jury verdict was not addressed in Weeks. 1982 PA 147 changed MCL 600.2925b; MSA 27A.2925(2) from “relative degrees of fault shall not be considered” to "relative degrees shall be considered”. It is helpful in analyzing the contribution statutes to use illustrations of typical situations.- The following result would have been reached prior to the amendment of § 2925b: If A, the injured party, were to sue the alleged tortfeasors B, C, and D and recover a jury verdict of $100,000, the following would occur. If A were found to be 25% negligent, then he would be entitled to a joint and several judgment against B, C, and D for $75,000. In determining each person’s pro rata share under the old statute, the total amount was divided by the number of parties. Thus, each would be responsible for $25,000; and if B, C, or D paid more than $25,000, he or she would be entitled to contribution from the other parties for the excess. Under § 2925b as amended, the relative degrees of fault are considered. Thus, if B were found to be 20% negligent, C, 20% negligent, and D, 35% negligent, each would only be responsible for the amount associated with his percentage of fault. Under the doctrine of comparative fault, then, B would be liable for $20,000, C for $20,000, and D for $35,000. This approach reinforces the idea that each party should be fully responsible for his acts and to the full extent to which they cause injury. Comparative fault abolishes the concept of multiple tortfeasors sharing liability equally regardless of fault. Under either the former or the latter form of the statute, defendants would be jointly and severally liable for the entire liability of all the defendants, but their liability to each other would be as indicated. In Jorae, the district court held that 1978 PA 495, the products liability statute, was applicable to the case at hand and that “the legislature did intend to apportion damages on the basis of relative fault between defendants as well as between plaintiffs and defendants in products liability actions”. 465 F Supp 958. Therefore, the court concluded that in a products liability case each joint tortfeasor should pay damages equal to his relative degree of fault. The federal court in Greenwood was faced with the decision of whether to allow the joinder of the owner and operator of an allegedly defective lawnmower when such joinder would destroy the court’s diversity jurisdiction. The court concluded that the joinder should be denied, but that the defendant’s amount of liability should be determined in relation to the amount of fault attributed to the non-parties. The result that would be reached under the trial judge’s instructions to the jury and that reached under § 2925d is very different. An example is helpful. If the jury were to be instructed to apportion liability among all tortfeasors, including the settling tortfeasor, as in this case, the following would occur: The jury would return with a total verdict, for example, $100,000, and the percentage of liability attributed to each tortfeasor: A, the injured plaintiff, 25% negligent, B, the settling tortfeasor, 25% negligent, C and D, defendants, each 25% negligent. If A had settled with B for $10,000, then A would recover $60,000, $50,000 as a joint and several judgment against C and D and the $10,000 settlement reached with B. The $100,000 judgment is reduced by A’s contributory negligence and B’s degree of fault. Thus, A would receive $60,000 for injuries the jury felt were worth $75,000. On the other hand, if § 2925d were applied, then the claim against the defendants is reduced by the amount of settlement, not by the percentage of fault. Thus, in the above example, A would be entitled to recover a joint and several judgment of $65,000 against C and D plus the $10,000 settlement reached with B, or a total of $75,000. As between C and D, their equitable shares of liability would be determined on the basis of their relative degree of fault, in accordance with § 2925b. The Michigan Court of Appeals has dealt with this issue most recently in Bacon v Dep’t of State Highways, 115 Mich App 382; 320 NW2d 681 (1982). See, also, West v Rollhaven Skating Arena, 105 Mich App 100; 306 NW2d 408 (1981). These cases held, we believe correctly, that the contribution statute which permits a reduction in the verdict by the amount of settlement as opposed to a reduction by percentage of fault was still applicable even after the adoption of comparative negligence.

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Quinn, P. J. The paramount issue in this controversy is whether plaintiff or Clara Raven is to be medical examiner of Wayne County. The factual background is: Early in 1967, the Wayne County medical examiner died suddenly. The county board of super visors designated Clara Raven, a deputy medical examiner for several years, acting medical examiner. March 30, 1967, the following resolution was passed: “Resolved, by the Board of Supervisors of the County of "VVayne, this 30th day of March, 1967, that John P. Burton, M.D., be and he hereby is, provisionally appointed as acting medical examiner for Wayne County, effective April 3, 1967, said appointment to be on an interim basis until such time as the medical examiner position may be filled through civil service procedures, and be it further “Resolved, that the Wayne County Civil Service Commission be and it hereby is requested to approve this provisional appointment, and be it further “Resolved, that the Civil Service Commission be and it hereby is requested to take immediate and appropriate steps towards the development of an eligible list from which the appointment of a medical examiner may be made on a permanent basis by this board, and be it further “Resolved, that the chairman of this board be and he hereby is authorized to sign all necessary documents on behalf of this board as appointing authority to effectuate the terms of this resolution.” Pursuant thereto, plaintiff assumed the office of medical examiner April 3,1967 and retains the office to this date. June 14, 1968, the civil service commission gave a promotional examination for the purpose of developing an eligibility list from which to fill the office of medical examiner. Plaintiff and Clara Raven were the only persons who took the examination. After evaluating the examinations, the commission determined that Clara Raven was first and prepared to certify her as the only eligible candidate for the appointment. June 21, 1968, plaintiff filed his complaint for injunctive relief against the commission on the basis that the factors included by the commission and the methods used in computing examination scores were illegal, and if proper factors and methods had been used in computing the examination scores, he would have been first. On the filing of this complaint, plaintiff obtained an ex parte order restraining the commission from using the eligibility list or from certifying any name therefrom for the position of medical examiner. OCR 1963, 718.2 was not complied with in obtaining the ex parte restraining order. It was dissolved September 16, 1968 as improvidently granted, and on October 17, 1968, the commission certified Clara Raven to the board of supervisors as being first on the promotional list. July 10,1968, Clara Raven was permitted to intervene and her answer contained a motion to dismiss the complaint as prematurely brought because plaintiff had failed to exhaust his administrative remedies before seeking relief in court. This motion has never been specifically ruled on by the trial court. Administrative remedies must be exhausted before judicial relief is sought. Bennett v. City of Royal Oak School District (1968), 10 Mich App 265. On the record before us we are unable to determine whether plaintiff has exhausted his administrative remedies. Normally on such a record, we would remand to the trial court for a determination of this question, but other aspects of this litigation lead us to a different conclusion. By bringing this action as he did, plaintiff prevented completion of the administrative process of appointment. Conceivably, had that process been completed, no court action by plaintiff would have been required. The statute, CLS 1961, § 38.415 (Stat Ann 1961 Rev § 5.1191 [15]), gives the appointing authority the choice of appointing the person certified or to make an original appointment. The jurisdiction of the trial court is questionable due to the form of plaintiff’s action. Review of civil service commission action is by certiorari, Bischoff v. County of Wayne (1948) 320 Mich 376, presently, superintending control, GCR 1963, 711.3. By finding that the examination results were not affected by the application of factors and methods attacked by plaintiff in his action, and the record supports such finding, we believe the question of the propriety of using these factors and methods is moot. Por these reasons, we decline to decide the serious and substantial issues raised by the appeal and cross-appeal. We find a more appropriate solution to be that the administrative appointment process be completed before it is challenged in court. Reversed and remanded for entry of an order dismissing plaintiff’s complaint, intervening defendant’s cross-complaint and denying defendant’s prayer for affirmative relief. No costs are awarded. All concurred.

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Fitzgerald, J. This appeal encompasses three separate lawsuits which were consolidated for trial, decision, and appeal. These actions challenge the validity of certain special assessments made by the defendant city in 1968 to finance improvements on Inkster Road and Cherry Hill Road. The facts, basically agreed, upon by the parties, reveal the following: In determining the assessments along Inkster Road, a total footage was utilized that was the sum of the assessable public and private lands abutting Inkster Road. Excluded from this figure was the footage contained within the intersections of abutting streets and alleys. This excluded amount equalled approximately 10% of the assessed total." The total footage was divided into the cost and resulted in an assessment of $29.50 per foot for property fronting on Inkster. Residential property was assessed for the first 40 feet at $18.10 per foot for property siding on Inkster. Certain interior property on the northeast quarter of the Inkster improvement was assessed at the flat rate of $39.68 per house. Finally, a certain church was assessed at $18.10 per front foot instead of $29.50. The assessment on Cherry Hill Road was made in a similar manner. Again, the width of intersecting roads and alleys was not computed in determining the per foot assessment. The result was an assessment of $36.08 per foot. The residential property siding on Cherry Hill was again subject to a reduced assessment for only the first 40 feet at $18.10 per foot. Plaintiffs’ objections to the local authorities were denied. An injunction was then sought by plaintiffs to prevent the assessments. The parties agreed that the show cause hearing would be a final determination of this matter on the merits. After hearing testimony on behalf of both sides, the trial court determined that there was a need for the road improvements and that the improvements would result in special benefits which would accrue to the neighboring landowners, including plaintiffs. Therefore, the various assessments were valid. From this determination plaintiffs present this appeal. Plaintiffs raise three issues. Defendants accept two, but reject the third, which, in actuality, is not properly before us. The viable issues can be stated as follows: A. Whether the trial court’s finding of fact regarding the existence of special benefits was erroneous. B. Whether the trial court’s determination that the assessment variances were valid was erroneous. On the first issue, plaintiffs argue that the trial court must find that special benefits exist in order to allow special assessments to be made on certain property. Fluckey v. City of Plymouth (1960), 358 Mich 447. Special benefits require an increase in value, relief from a burden, or the creation of a special adaptability in the land. 63 CJS, Municipal Corporations, § 1371, p 1128. They claim that when these general principles are applied to the instant case, the testimony is inadequate, and that the testimony of the defendants’ witnesses failed to establish any special benefits. On the other hand, the plaintiffs say their witnesses established (a) that there was no need for the work, and (b) that the result of any work would be detrimental. In response, defendants do not argue with the initial statements of law advanced by the plaintiffs, but rather examine the testimony of their witnesses. Bach of the witnesses testified that either special benefits exist or that the method of assessment is acceptable. The defendants then conclude that the trial court’s finding of fact was not erroneous.. There was testimony on the record which, if believed, could be used as the basis for the trial court’s finding of fact. One of the defense witnesses was Mr. Elmer E. Mueller, Assistant Director for the Detroit City Planning Commission. Part of his testimony was as follows: “The Witness: I contend that there was, your Honor, a definite benefit to the abutting property owners, and I think I cited some of the factors that are relevant to such a determination, the provision for better drainage, elimination of an unsatisfactory situation between the pavement and sidewalk, the providing of the safety to the particular abutting properties, the people that use the abutting property because of the separation by curbing between the improved highway and the remainder of the road, by the elimination of the gravel portion of the roadway where it was used for parking which created a:‘traffic hazard which might be detrimental to the aDutting property and the public as a whole, and the people that use the pavement facility that was abutting the highway were subjected to traffic hazards because they came in and out of the area of the, street that was used for parking, and it improved the general appearance of the highway. “An improved highway as was done here — when you drive east on Cherry Hill to the City of Inkster and notice' the difference in the character of the city — 'the aesthetics of it have been improved. ‘“The Court: [Y]ou feel that over and above the general benefit to the community there is a reasonably substantial benefit to the abutting property owners ? “The Witness: I think that it is a major benefit.” ' This' Court may not upset a finding of fact unless it,is clearly erroneous. GCR 1963, 517.1; Zitomer v. Kelmenson (1965), 375 Mich 206. Since there was testimony which could act as its basis, the finding of a special benefit is not clearly erroneous. ’’ On issue fwu, in challenging the special assessments' for Inkster Road, plaintiffs raised five claims of variances. Plaintiffs argue that the charges assessed for benefits must be in proportion to the charges levied against others in the assessment district as well as to all.,who will benefit from the improvement. I. H. Gingrich & Sons v. City of Grand Rapids (1932), 256 Mich 661; Crampton v. City of Royal Oak (1961), 362 Mich 503. However, both assessment districts contain a number of variances. ' First, they demonstrate a decrease to $18.10 per foot for residential property. Defendants responded by' saying this was a nonresidential area. Since only three of 188 lots were in an area classified as one-family residential, it is not for the Court to say that there was not less benefit accruing to these landowners. The second variation was the decreased assessment for the church. Defendants did not respond to the prima facie inequality established by plaintiffs. The third variation was in the flat figure assessed to houses in the northeast quadrant. The prima facie case of plaintiffs was not answered by defendants. The fourth variance was the failure to include the width of intersections in determining the per foot cost. Defendants responded that this amount was divided among the accessible roads. However, an examination of the zoning map establishes that this is not so. The fifth was the variance between the amount authorized by the Inkster City Council and the amount assessed. Defendants did not respond to this variance. Plaintiffs’ objections regarding the Cherry Hill assessment were that again intersections were not included and that residential property was assessed at a lower rate. The responses made by defendants to the Inkster assessments were applicable here and the Cherry Hill assessment district is free from attack. Nor does plaintiffs’ citation of Michigan statute alter this conclusion. MOLA § 67.19 (Stat Ann 1961 Bev § 5.1303) refers to fourth-class cities. Inkster, with a population of 38,000, is not governed by that statute. A review of the law applicable to this appeal establishes that the defendant city had the authority to make the improvements contracted. The trial court made a finding of special benefits which jus tified the existence of a special assessment distinct. This finding had a factual basis and is not clearly erroneous. More important is the manner in which the different assessment rates were determined. A review of -defendants’ objections to the Cherry Hill Road assessments established that they are not in violation of any principle of law. However, a review of the Inkster Road assessments demonstrates several' problems, that call for reversal. Fiist, the reduction of the church assessment, though perhaps valid, is unsupported before this Court. Second, there is not a uniform charge per interior home in the different quadrants. The northwest quadrant .contained residences equidistant from Inkster 'with the northeast quadrant. The southeast quadrant is entirely dependent upon Inkster Road for ingress and egress. The northeast quadrant, however, has access to Cherry Hill Road. Yet only the northeast quadrant was assessed. Third, the costs of the intersecting streets and alleys were neither apportioned among the city at large nor among all the interior residences which gained greater access to ingress and egress. Fourth, the city assessor did not comply with the total assessment authorized by the council. We conclude that though the improvements conferred benefits on the property owners, the method of assessing was -improper. Reversed and remanded for further .proceedings, retaining no jurisdiction. No costs, a public question. All concurred.

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Danhof, J. Grosse Ile Township is made up of a rather large island called Grosse Ile, of about 5,704 acres, together with several smaller islands which surround it. One of the islands south and a little west of Grosse Ile is known as Celeron Island. It consists of about 184 acres of which about 124 are above water. Natural or semi-natural canels run through it. It is owned by the Celeron Island Corporation, a Michigan corporation, which plans to subdivide and develop the island for summer residence use in the form of summer cottages and recreational uses incident thereto. On October 27, 1914, the Wayne County Board of Supervisors passed a resolution splitting off an easterly portion of Monguagon Township and thereby creating the township of Grosse lie. The salient portion of that resolution reads: “Resolved, ordered and enacted as follows: That the township of Monguagon be and the same is hereby divided, and a new township be and the same is hereby erected in said county of Wayne, which shall be designated as the township of Grosse He, and shall consist of all of that portion of said township of Monguagon lying easterly of the center of the channel of the westerly or American channel or branch of the Detroit River and including Calf Island, so-called in said channel, as indicated upon the map aforesaid.” Attached to the resolution is a map of Monguagon Township which does not disclose Celeron Island on it. Plaintiff commenced its action by complaint and order to show cause requesting a preliminary injunction against the defendant. The defendants filed their answer and the municipal defendant, Grosse lie Township, filed a counterclaim seeking an injunction pendente lite and a permanent injunction at trial restraining the plaintiff from continuing to dredge or otherwise alter the natural terrain of Celeron Island except in accordance with the dredging permit issued by the township of Grosse He. There was an initial hearing before the trial court on March 25, 1968, in which counsel argued the respective positions of the litigants, Each sought a preliminary injunction. Plaintiff sought to enjoin the defendant from exercising any governmental control over Celeron Island, including taxation, because of the absence of jurisdiction predicated on the position that Celeron Island was not part of the township of Grosse lie; and conversely, Grosse Ile Township took the position that Celeron Island was part of the township, that it was subject to regulation by the township and that a preliminary injunction should issue prohibiting the plaintiff from proceeding with development in disregard of township regulation. At this hearing defendant Grosse Ile Township offered Harold Glassford to testify as an expert map maker. After being qualified, Mr. Glassford testified that the map attached to the Wayne county supervisors’ resolution was accurately drawn except that Celeron Island was left out; that he could not tell if the map maker intended to exclude Celeron Island; that Celeron Island lies to the east of the thread of the stream; and that the thread of the stream is the deepest part of the stream which would represent the American channel. It was stipulated that private claim 53 was granted by the United States government to Sarah Macomb early in the nineteenth century and included not only Grosse Ile but five surrounding islands, of which Celeron Island was one. At a further hearing on April 29, 1968, the trial court advised counsel for the respective parties that he had considered the briefs submitted by each side and that a temporary injunction would issue as requested by the plaintiff. On November 30, 1968, the trial court denied defendant’s motion to advance and granted plaintiff’s motion for summary judgment. The trial court assumed as a fact that Grosse lie Township had been collecting taxes on Celeron Is land for 45 years, but made no determination as to where Celeron Island belonged in terms of political boundaries, but only that it was not within the political boundaries of G-rosse lie Township. The court did not require a bond and made no disposition of taxes deposited with the Wayne County clerk pending final disposition of the case. Unfortunately, all parties requisite to complete determination of the central question, namely, what is the political status of Celeron Island, were not brought before the trial court. Therefore, we must reverse and remand the cause to the circuit court for the county of Wayne with instruction that the court order joinder of all the necessary parties, including, but not limited to, the state of Michigan, Browns-town Township, Monguagon Township or the successor to the remainder thereof after the partition of October 27,1914, the city of Gibraltar and the county of Wayne, as provided in GCR 1963, 205.2. The trial court is ordered to make such determinations as are necessary for complete and equitable relief including a decision as to the political status of Celeron Island and the disposition of the taxes paid by the plaintiff to the Wayne County clerk’s office. Additionally, the trial court is directed to take such action as it may deem necessary to prevent irreparable harm to Celeron Island and its environs until a final decision is reached. Defendant’s proposed exhibits A-l, A-2, A-3 and A-4, being map extracts from a tract book Evolution of Wayne County maintained by the Wayne County tract index department, were denied admission. They were offered for the purpose of showing that that department of the county of Wayne had treated Celeron Island as being part of the township of Grosse He since 1914. Defendant argued that this was supportive of the doctrine of long acquiescence in political boundaries. See Village of Elberta v. City of Frankfort (1956), 347 Mich 173, and Auditor General v. Klenk (1968), 381 Mich 255, where that doctrine was considered a decisive factor. The trial judge denied admission of the exhibits on the basis that they were irrelevant since the rule of long acquiescence in. political boundaries is based on how the parties directly involved considered themselves and not on how others may have considered them. We think that ruling was correct as it pertained to the current parties. However, with the addition of new parties this ruling should be reexamined if the exhibits are again offered by the defendant. Reversed and remanded for proceedings in accordance with the foregoing opinion. We do not retain jurisdiction. All concurred.

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J. H. Gillis, J. This is a trip and fall case. Plaintiff Hester Pigg sustained serious injuries-when she tripped and fell on torn carpeting that covered tbe floor of a ballway outside ber apartment. Tbe apartment building was owned by defendants Harry and Beatrice Bloom. Plaintiff commenced suit against defendants, alleging that sbe fell as a result of defendants’ negligence; specifically, it was alleged that defendants failed to repair torn carpeting covering tbe ballway floor outside plaintiff’s apartment in breach of tbeir duty to maintain tbe building’s common areas in a reasonably safe manner. Defendants’ answer denied negligence. By way of affirmative defense, defendants alleged that tbe fall was occasioned solely by tbe negligence of tbe plaintiff. It was alleged that plaintiff failed to observe the torn carpeting in breach of her duty to exercise reasonable care for her own safety. Trial was to the court, sitting without a jury. At the close of plaintiff’s proofs, defendants moved for a directed verdict on the ground that, as a matter of law, plaintiff was guilty of contributory negligence. The trial court agreed and entered a judgment of no cause of action in defendants’ favor. On appeal, the only question we need answer is whether the trial court erred in ruling that plaintiff was contributorily negligent as a matter of law. On a motion for directed verdict, it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the trier could reasonably find a verdict contrary to the moving party. The principle is well established. See Blazo v. Neveau (1969), 382 Mich 415. It is also well established that, on appeal, the standard to be applied in reviewing the direction of a verdict on the ground of contributory negligence is whether, upon favorable-to-plaintiff view of the evidence, all reasonable men would agree that plaintiff was guilty of contributory negligence. Budman v. Skore (1961), 363 Mich 458; Ingram v. Henry (1964), 373 Mich 453, 455, and cases there cited. In the present case, the trial judge summarized the evidence as follows: “The particular accident occurred at 8:30 a.m. on the morning of April 10, 1965. Plaintiff was dressed in house slippers, the type where one slips her foot into the slippers, and took approximately three steps before she fell. She had been chatting some two minutes with other apartment dwellers before she fell and had in one arm a stack of newspapers for the week. “As she déscribed the accident, she took one step toward the front while looking back, and when she made that first step her foot went under the rug and she pitched forward. * * * “Introduced into evidence were pictures of the carpeting and the opening or slit in the carpeting which graphically described the worn portion of the carpeting. There was an opening some five to sis inches wide into which plaintiff’s foot went before she pitched forward and sideways. She concedes that she did not look down at the floor before she fell and in fact was looking to the back as she chatted with another tenant or tenants. She also conceded that some six to seven months before she had reported the defective and worn condition of the carpeting when she had noticed a smaller separation. “We believe that Brown v. Grell, 369 Mich. 628, is controlling. There plaintiff tripped over a loose metal strip on a stair landing on defendant’s premises which caused her injuries incident to a fall down the stairwell. She was held to be contributorily negligent as a matter of law, where the condition was one of which, she had known for more than two years and where she had tripped before by reason of catching her heel. In our case plaintiff knew of the defective condition, in fact had complained about it six months or so before this incident and must have been aware that the condition could not have improved with time since the repairs had not been made. So far as the lighting, the lighting was not the cause of the happening of this accident since she was not looking forward at the time and was in fact, by her own admission, conversing with another tenant or tenants and looking backward over her shoulder. * * * ” The trial judge concluded: “Certainly the defendant was negligent and did not provide a reasonably safe place for his tenant or tenants, bnt at the same time, under the facts of this case, we must bold that plaintiff was contributorily negligent under the authority of Brown as well as Jones v. Michigan Racing Association (1956), 346 Mich 648, and Yearsley v. City Bank (1960), 361 Mich 574. A judgment of no cause of action may be entered.” For reasons hereafter discussed, we reverse and remand for trial. On the record before us, the question of plaintiff’s contributory negligence at the time of the fall was one for the trier of fact. On appeal, plaintiff does not question the trial court’s finding that at the time of the fall she was not looking at the floor. Nor does plaintiff contest the fact that she had notice of the defect. It also appears from the record that plaintiff considered the torn carpeting to be dangerous. Nevertheless, plaintiff contends that these facts alone do not warrant a finding that, at the time of the fall, plaintiff was contributorily negligent as a matter of law. Plaintiff relies on Uren v. Toth (1966), 5 Mich App 170. Defendants argue that plaintiff’s contributory negligence was glaring. Plaintiff, we are told, exerted no effort whatsoever to avoid a condition that she knew was present and considered dangerous. The accident would not have happened if she had momentarily looked and then simply stepped over or squarely on the separation. Defendants reiterate their contention, accepted by the trial judge, that this case is controlled by Brown v. Grell (1963), 369 Mich 628. Finally, defendants suggest that we need not consider whether plaintiff was contributorily negligent as a matter of law. It is argued that the trial judge treated the issue of plaintiff’s negligence as a question of fact, resolving that issue against plaintiff while sitting as trier of fact. We treat this latter contention first. After reviewing the record and the trial court’s opinion in this case, we are satisfied that the trial judge considered plaintiff contributorily negligent as a matter of law. Although the matter is not entirely free from doubt, we reach this conclusion for the following reasons. It is apparent from the opinion of the trial judge that he viewed Brown v. Grell, supra, as controlling. In Brown, plaintiff was held to be contributorily negligent as a matter of law— a disposition specifically noted by the trial judge in his opinion filed in this case. The trial judge also relied on Jones v. Michigan Racing Association (1956), 346 Mich 648. Again, in Jones, plaintiff’s contributory negligence was resolved as a matter of law. See 346 Mich at 650. In light of the trial judge’s reliance on cases which resolved issues of contributory negligence as a matter of law, we can only conclude that the trial judge here acted likewise, holding plaintiff guilty of contributory negligence as a matter of law. In like cases arising in the future, we think it advisable that the trial bench, when sitting without a jury, make clear on the record whether they have acted as a matter of law, or as trier of fact, in entering judgments of no cause of action. We proceed to the merits. The question is: Can it be said that plaintiff was contributorily negligent as a matter of law? The facts, as summarized by the trial court, support the conclusion that at the time of her fall plaintiff’s attention was distracted. Immediately prior to the fall, plaintiff was chatting with a fellow tenant, one William Green. Plaintiff testified at trial that Mr. Green initiated the conversation. On cross-examination, plaintiff testified as follows: “Q. Now, from the time you left your apartment to the time of the accident, did you look at the floor ? “A. No, I didn’t. “Q. You were looking ahead of you or either looking at Mr. Green; is that correct? “A. I looked at Mr. Green and, actually, 1 was in a hurry. I didn’t look at anything. I was expecting a telephone call at nine o’clock. All I wanted to do was get in the basement and get back before the phone rang. “Q. You were in a hurry? Is that correct? “A. I wasn’t rushing; I wasn’t running, but I had this on my mind. “Q. You wanted to perform your chores, deposit the newspapers, and come back up for the telephone call; is that correct ? “A. That’s right.” (Emphasis supplied.) Just what plaintiff had on her mind at the time of the fall is not disclosed in the record. It is clear, however, that, at the time of her fall, plaintiff did not have the defective carpeting in mind. In Whoram v. Township of Argentine (1897), 112 Mich 20, plaintiff recovered a judgment for personal injuries received after falling on an allegedly defective- highway. The testimony disclosed that plaintiff knew of the defect in the highway. However, as here, at the time of the fall plaintiff was not thinking of the defect. Rather, he “was thinking about my errand — about my business — when the accident happened. I didn’t think about this hole. My mind was intent upon my business at the time.” 112 Mich at 22. On appeal, defendant argued that plaintiff’s testimony, in light of his prior knowledge of the defect, required the conclusion that plaintiff was negligent as a matter of law. The Court, citing Bouga v. Township of Weare (1896), 109 Mich 520, held that the question of plaintiff’s contributory neg ligence was properly left to the jury. 112 Mich at 23. In Bouga v. Township of Weare, supra, at 523, the Court noted: “Certainly, one who should pass a broken bridge by a ford, in the morning, might be expected to remember the fact until night, and act upon such recollection. Whether or not it would be negligent to forget it, and drive upon the bridge, might depend upon circumstances, which would be for the jury to pass upon.” (Emphasis supplied.) Both Whoram v. Township of Argentine, supra, and Bouga suggest the following rule. We quote from an annotation entitled, “Momentary Forgetfulness of Danger as Contributory Negligence,” 74 ALR 2d 950, 953: “[F]orgetfulness is not necessarily negligence but is merely one factor to be considered in light of the total situation, in determining whether the overall test of reasonable care has been met.” Accord, Kucinski v. City Laundry & Cleaning Works (1928), 242 Mich 352, 355. Moreover, that same annotation notes that in a number of cases courts have held the issue of contributory negligence in forgetting a known danger to be a question for the trier of fact. Bouga v. Township of Weare, supra, is cited as supporting authority. See 74 ALR 2d at 955, 956. In other words, such cases present circumstances making it impossible for the reviewing court to say with any certainty that all reasonable men would agree plaintiff was guilty of contributory negligence. Dundas v. City of Lansing (1889), 75 Mich 499, provides an additional example. Plaintiff sued for injuries sustained when she fell into a hole on an allegedly defective crosswalk. Again, there was testimony that plaintiff knew of the defect prior to the accident. Defendant claimed that plaintiff’s testimony established as a matter of law that she was contributorily negligent. The Court responded at p 509: “She testified that she was in a hurry to get home, and was not thinking about the hole in the ivalk, nor looking for it, and that if she had been thinking about it, or looldng for it, she would not have stepped into it; that she was sure it was because she did not think of it that she stepped in; that she did not look for the hole. * # # “It is doubtless true, as plaintiff testified, that had she been at the time upon the lookout for this hole in the walk she might have seen and avoided it; but the question is, was she negligent, under all the circumstances and surroundings, in not seeing and avoiding itf The darkness of the night, the storm, her anxiety to get home are all circumstances that should be weighed as bearing upon her conduct upon that occasion. The question is not free from doubt, and when it is not it should be submitted to the jury.” 75 Mich at 509, 510. (Emphasis supplied.) See also, Graves v. City of Battle Creek (1893), 95 Mich 266; 2 Restatement Torts 2d, § 289, comment k, p 45. A second commentator lists the following circumstances under which inattention to a known danger may be consistent with the exercise of ordinary care: “[T]he situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly, which are calculated to divert one’s attention momentarily from the danger.” 65A CJS, Negligence, § 120(2),p 65. In the present case, it was plaintiff’s testimony that she was in a hurry; something was on her mind. Whether that something was so trivial as not to warrant inattention to her surroundings is not disclosed in the record. However, in the absence of testimony to the contrary, we think it permissible to infer on favorable-to-plaintiff view of the evidence that what distracted her attention was a matter of importance. Plaintiff also testified that she was anxious to return to her apartment; she was expecting a telephone call. Upon leaving her apartment, her attention was distracted by Mr. Breen and immediately thereafter she fell. All these circumstances combined could reasonably lead the trier of fact to conclude that plaintiff’s momentary inattention to the torn carpet was consistent with the conduct of an ordinarily prudent person. Whether or not a reasonable person would have avoided the torn carpet of which he had prior knowledge under like circumstances was, on the testimony presented, a question on which reasonable men might fairly reach different conclusions. As such, the question of plaintiff’s contributory negligence was for the trier of fact. Todd v. Simonis (1963), 370 Mich 342; Ingram v. Henry, supra; Uren v. Toth, supra. Both Brown v. Grell, supra, and Jones v. Michigan Racing Association, supra, upon which defendants rely, are distinguishable. In each, no evidence was presented indicating that, at the time of the accident there involved, plaintiff was distracted. In Jones, the Court noted at 650, 651: “[P]laintiff, before the accident, saw the muddy puddles and wet tickets all over the floor, recognized or should have recognized that a dangerous condition was thereby created and, in the face of such knowledge, undertook to leap on one foot across the 4- to 5-foot puddle.” (Emphasis supplied.) And see, Shorkey v. Great Atlantic & Pacific Tea Co. (1932), 259 Mich 450, 453. Defendants’ contention that Brown and Jones control overlooks a fundamental distinction. “Knowledge alone of the dangerous character of the instrumentality which causes an injury is not sufficient to charge the injured party with contributory negligence, as a matter of law; the question in each case being whether plaintiff did or did not have the danger in mind at the time of the injury complained of. Dundas v. City of Lansing, 75 Mich. 499 (5 L.R.A. 143, 13 Am. St. Rep. 457); Graves v. City of Battle Creek, 95 Mich. 266 (19 L.R.A. 641, 35 Am. St. Rep. 561); Grandorf v. Railway Co., 113 Mich. 496; Vergin v. City of Saginaw, 125 Mich. 499.” Kucinski v. City Laundry & Cleaning Works (1928), 242 Mich 355, 356. (Emphasis supplied.) In summary, on the evidence presented, it was error for the trial court to conclude as a matter of law that plaintiff was contributorily negligent. What constituted due care for plaintiff’s own safety was, on this record, a question of fact and not of law. Reversed and remanded for new trial. Costs to appellant. All concurred. Under GCE 1963, 111.7, contributory negligence is an affirmative defense.

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Danhof, P. J. Defendant Budary and a codefendant, Howard Commons, were found guilty of robbery armed by a jury on February 20, 1963, CLS 1961, § 750.529 (Stat Ann 1970 Cum Supp § 28.797). It was tbe theory of the prosecution that Budary and Commons, along with James Murphy and Robert Richter, committed an armed robbery of a Food Fair market in Detroit on December 4, 1961. Initially, only Budary, Commons and Murphy were held for trial, because Richter had left the state and had not yet been apprehended. Two preliminary examinations were held. The first occurred on January 5, 1962, -with Budary, Commons and Murphy as defendants. Attorney Gregory Pillon represented Commons and Murphy. There was no appearance by an attorney for Budary. However, near the conclusion of the examination attorney Pillon made a motion that the case be dismissed as to Commons and Budary alleging lack of probable cause to believe that the two men were connected with the holdup. The court, however, decided to bind over all three defendants for trial on the charge of robbery armed. On March 20, 1962, James Murphy pleaded guilty and was later sent to prison. Thereafter, on March 26, 1962, the prosecution moved to dismiss the case against Budary and Commons. On July 15, 1962, Budary and Commons were rearrested for the rob-’ bery and arraigned on July 16, 1962. A second preliminary examination was held on July 19, 1962, before a different judge than was involved in the first preliminary examination. At this second preliminary examination attorney Pillon again represented codefendant Howard Commons. There was a brief colloquy between the court, Budary and Pillon wherein the court asked Budary why he didn’t have a lawyer and he answered that he didn’t have the funds. The court then asked attorney Pillon if there was any conflict that he could antici pate and, when Mr. Pillon answered none that he could think of, the court said, “You represent both of them for the examination only.” . By this time Robert Richter had been captured in Chicago, Illinois, and returned to Detroit. He also pleaded guilty. At the second preliminary examination, he testified for the people, and it is the admissibility of that testimony at trial which is questioned in this appeal. At the trial which commenced February 14, 1963, defendant was represented by attorney Ted Vincent, appointed by the court, and the codefendant was represented by Mr. Pillon. The case was tried and decided before the creation of this Court. On October 19, 1967, defendant filed a motion for leave to file a delayed motion for new trial, which was denied January 9, 1969. This Court granted an application for delayed appeal on March 10, 1969. Defendant argues that the summary appointment of codefendant’s counsel to represent defendant at the second preliminary examination, without the record showing an affirmative determination by the examining magistrate that the defendant intelligently chose to be represented by the same counsel, and that his decision was not governed by poverty and lack of information on the availability of assigned counsel to represent him alone, constituted reversible error. In People v. Dockery (1969), 20 Mich App 201, this Court held that absent prejudice to the defendant this Court would not reverse because indigent codefendants were represented at trial by the same appointed counsel. The Court’s opinion indicated that this was not the most desirable method of procedure and that, if there was any conflict of interest in the positions of the codefendants, the result would be different. The Dockery case related to the trial itself. In the instant case we have no question about the actual trial where codefendants were represented by separate counsel. With regard to the preliminary examination, as previously stated, the court did ask attorney Pillon if he anticipated any conflict and received a negative response. Thereafter attorney Pillon throughout the examination made many objections and cross-examined the people’s witnesses vigorously. With regard to witness Richter’s testimony there are ten pages of vigorous cross-examination by Pillon. The fact that near the end of the examination Mr. Pillon indicated that he didn’t represent defendant Budary does not alter the fact that he then went on to represent him by contending that Budary wasn’t guilty of the crime inasmuch as the only connection between him and it was that he was some eight blocks away during its occurrence. Mr. Pillon’s remark does not alter the fact that the court at the beginning of the examination did appoint him to represent Budary, and he did in fact do so in a competent way. However, regardless of whether attorney Pillon’s representation of the defendant was effective or not, the court in Lundberg v. Buchkoe (CA 6, 1968), 389 F2d 154, held that Michigan’s arraignment and preliminary examination proceedings did not constitute a critical stage of the proceedings at which counsel for the accused was required. By way of dictum the court said there might be special circumstances in some eases that would suggest that the proceedings were critical and therefore required counsel. However, counsel was in fact appointed for defendant Budary, albeit not in the most exemplary fashion. Defendant then attempts to buttress his position that he was without effective counsel at a critical stage in' the criminal judicial process by stating that actual prejudice is readily discernible. In support of this defendant argues that the critical testimony at the preliminary examination which resulted in defendant’s being bound over for trial was that of Robert Richter, who upon his capture and return from Chicago pleaded guilty of the same criminal act charged against the defendant and who at the preliminary examination implicated Budary in the robbery. Yet at the trial when Richter was called as a witness for the people, he firmly denied that Budary had any connection with the crime. The prosecution then proceeded to read portions of Richter’s testimony at the preliminary examination before the jury and over the defense counsel’s objections, and this testimony was particularly damaging to Budary’s defense. Defendant then says that this testimony was taken at the preliminary examination whére Budary did not have his own counsel and where he was denied effective confrontation and cross-examination relative to self-interest, duress or any number of reasons for this damaging testimony. Defendant cites Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065; 13 L Ed 2d 923) and People v. Chapman (1968), 380 Mich 74, in support of his position that preliminary examination testimony cannot be admitted at the trial if defendant was not represented by counsel at the preliminary examination. Both cases are readily distinguishable from the instant case because no attempt was made to appoint counsel at the preliminary examination in those cases, whereas in this case Pillon was appointed. More significant, however, is the fact that neither of the cases involved use of preliminary examination testimony for the purposes of impeachment as does the instant case. That is true also of People v. Gibbs (1967), 255 Cal App 2d 739 (63 Cal Rptr 471). All of them concerned the admission of preliminary examination testimony as substantive evidence because tbe witness at tbe preliminary examination was unavailable to testify at tbe trial. Tbe point made by tbe courts was that when defendant wasn’t represented by counsel at tbe preliminary examination or bis attorney did not have adequate time to prepare for cross-examination, then defendant bad been denied bis constitutional right to confront tbe witnesses against him which is primarily for tbe purpose of cross-examination, and that, therefore, their testimony could not be used as substantive evidence at tbe trial. In other words, tbe people bad to bring in tbe witness at tbe trial so that tbe defense counsel bad at least one opportunity to cross-examine tbe witnesses against tbe defendant. In tbe present case there is no problem of tbe defendant not having a complete and adequate opportunity to confront tbe witness and to cross-examine tbe witness, since Richter took tbe stand at tbe trial and tbe preliminary examination testimony was used only to impeach bis testimony at tbe trial. Clearly this case does not present tbe “special circumstances” that tbe court in tbe Lundberg case bad in mind. Defendant’s second argument is that tbe testimony of tbe police officer relative to tbe information given by tbe allegedly reliable informant did not satisfy tbe requirements of reliability and particularity of information sufficiently to authorize tbe trial judge to have denied disclosure of tbe informant’s identity, and that tbe search incidental to defendant’s arrest consequently violated tbe Fourth and Fourteenth Amendments of tbe United States Constitution and tbe evidence obtained thereby was inadmissible and should have been excluded. Defendant cites as authority for his position Beck v. Ohio (1964), 379 US 89 (85 S Ct 223; 13 L Ed 2d 142) wherein the Court said: “All that the trial court was told in this case was that' the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law. Beyond that, the arresting officer who testified said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner. We do not hold that the officer’s knowledge of the petitioner’s physical appearance and previous record was either inadmissible or entirely irrelevant upon the issue of probable cause. (Citing Brinegar v. United States [1949], 338 US 160 [69 S Ct 1302; 93 L Ed 1879]). But to hold that knowledge of either or both of these facts constituted probable cause would be to hold that anyone with a previous criminal record could be arrested at will. “It is possible that an informer did in fact relate information to the police officer in this case which constituted probable cause for the petitioner’s arrest. But when the constitutional validity of that arrest was challenged, it was incumbent upon the prosecution to show with, considerably moore specificity than was shown in this case what the informer actually said, and why the officer thought the information was credible.” The instant case is clearly distinguishable from the facts in the Beclt case. The record shows that a Detroit police officer testified on direct examination as follows: “Q. Was this person you talked to on the third day of December, 1961, a confidential informer? “A. He was. “Q. Did he give you certain information on this date ? “A. Yes, sir. “Q. And has he given you information, or had he given you information in the past? “A. Yes. “Q. Had that information turned out to he reliable ? “A. Yes.” On a special record out of the presence of the jury the direct examination was continued, part of which follows: “Q. Is this man still a valuable informer to the Detroit Police Department? “A. Yes. “Q. Would it be injurious to the Detroit Police Department to ask this man to disclose his name at this time? “A. It would, sir. “Q. Please state the information given to you by this man. “A. I was told that there was a gang consisting of three men who specialized in holdups of super markets. “Q. Go ahead. “A. They were going to hold up a supermarket this following week. The first man was described as the driver who lived at the Wardcliff Hotel in room 404. His name was Melvin Budary. He had already stolen the car and had it hidden to use in the holdup. Number two man was described as a white man, 30, 6 foot tall, 150 pounds, dark brown hair, light jacket, which he always wears. He was also described as thin, broad shoulders, clean-cut looking, young clean-cut appearance. He lived at the Leroy Hotel on Brainard, and was going with a waitress from Harry’s Bar on Michigan, and a waitress from Pox’s Bar on Michigan, called Mitzie. Mitzie I knew to be Mary Shay. Number three man was described as a white man who always wore a blue jacket and also goes with the waitresses and the above man. He is supposedly staying with the number two man at the Leroy Hotel on occasions. The guns to be used on the holdup were reported to be at the waitress’ apartment on Brainard. Also Mitzie lived at 84 Sproat, apartment number 202, and these people congregated there and sometimes stayed there. That was the original information that I received. I told the informer to keep digging and keep in constant contact with me, which was done. Monday, December 4, I was again contacted. We were on the street looking for the suspects. I was contacted and told there was going to be four men on the holdup. The car they were going to use was a white ’61 Pontiac or Oldsmobile, that the super market was on the west side. The exact location was not known. Later, as we were still on the street, at approximately 6:50 we heard a radio run, holdup, at 16520 West Warren, Food Fair Market, a robbery. This fitted in with the information we had previously. Then at 7:32 as I recall a teletype was issued describing two of the men and stating they had escaped in a ’60 white Olds or Pontiac vehicle. Contact was again made with the informer several times that evening, and we learned Melvin Budary was one of the men and a man named Bob and the number two man we learned was Richter. The number three man we got a description on as being young, clean-cut, handsome, with curly hair, blond curly hair. We also learned that one of these men supposedly owned a white-blue Falcon vehicle. At approximately 10:30 or so in the evening of the fourth of December, 1961, we received information that it was believed the participants of this holdup were at 84 Sproat. I then gave that message to Sergeant Collins, and told him as far as I was concerned the people were in there now and he could arrest them at his own discretion, or as soon as he felt it feasible. At approximately 11 o’clock I left the scene when Sergeant Collins arrived. As I recollect, that was Ihe extent of the information.” The foregoing quotations from the trial transcript show clearly what the informer actually said and why the officer thought the information was credible. The informer had given reliable information before, he described the defendant by name and address, he related many specific details about the holdup gang including a description of the get-away car and the address where they could probably be found. We find no merit in defendant’s argument that the information given by the informer did not satisfy the requirements of reliability and particularity required by Beck v. Ohio, supra. Defendant next argues that the trial court erred in allowing the prosecution to read portions of Robert Richter’s testimony at defendant’s preliminary examination in front of the jury for the purpose of impeaching Richter’s testimony without informing the jury that it could not consider Richter’s examination testimony as substantive evidence. Defense counsel did not request such a charge and no exception was taken to the trial court’s failure to give such an instruction. It may have been an oversight on defense counsel’s part, or it may have been trial strategy not to remind the jury of the testimony at the preliminary examination since that was highly prejudicial to defendant. The question for this Court is: should it reverse when defense counsel has not requested specific instructions limiting preliminary examination testimony to impeachment purposes and has not objected to the court’s instruction as given. CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052) states in part: “The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” This Court relied on that statute in refusing to reverse in the cases of People v. George Baker (1967), 7 Mich App 7, and People v. Pope (1967), 8 Mich App 231. The Baker case concerned the introduction of the defendant’s criminal record for impeachment purposes and the Pope case concerned the impeachment of a witness by prior verbal statements. However, in People v. Eagger (1966), 4 Mich App 449, and People v. Danles (1969), 15 Mich App 510, this Court held that it was reversible error to fail to give an instruction that the out-of-court statements which were not under oath and were not in the presence of the defendant could be used only for impeachment purposes and not as substantive evidence even though such an instruction was not requested by the defendant. Reliance was placed on People v. Durkee (1963), 369 Mich 618, in arriving at this result. Those three cases are factually distinguishable since in the present case preliminary examination testimony is involved which is sworn under oath and given in the presence of the defendant who has a right to confront the witnesses and to cross-examine them. This distinction was not spelled out in any of the three opinions, but it wasn’t necessary since preliminary examination testimony was not being challenged. However, the court in the Durkee ease may well have had this in mind when it said at p 626 with reference to the out-of-court hospital statement: “even though the statement was not made under oath and not made in the presence of defendant.” In that case the preliminary examination testimony indicated that the witness did not remember and she also stated at the trial that she did not remember so the preliminary examination testimony and trial testimony agreed, and the issue was whether the out-of-court hospital statement could be used to impeach her. However, in People v. Virgil Brown (1969), 15 Mich App 600, the defense counsel did object to the use of the preliminary examination testimony and requested the court to include in its charge to the jury an instruction that the questions put to the witness by the prosecution were not evidence and could not be considered by them in their deliberation. The court, aside from a remark to the prosecutor not to stray beyond legitimate impeachment, did not instruct the jury either during the trial-or in its charge that use of the preliminary examination testimony was only for impeachment purposes and could not be considered as substantive evidence. That case is of course distinguishable in that the defense counsel did object and did request a specific limiting instruction which the trial court refused. There is no question but what that constitutes reversible error. The court went on to say that failure to give such a limiting instruction has been held to be reversible error irrespective of whether such an instruction was requested, citing the Eagger case. However, as previously stated that case dealt with an out-of-court statement and did not involve preliminary examination testimony which is given under oath and in the presence of defendant. Regardless of this factual distinction, however, we do not think that the Brown case is controlling as it was decided some six years after the trial in the instant case. We hold that this case is governed by CL 1948, §768.29 (Stat Ann 1954 Rev §28.1052). Defendant having failed to request the instruction will not now be granted a new trial because of the court’s failure to give the instruction. Defendant also contends that the lower court erred in not declaring a mistrial when the prosecuting attorney made reference to a “convicted felon” in his rebuttal statement, since defendant had elected his constitutional right to remain silent. The remark complained of occurred during the prosecutor’s closing argument to the jury as he was summarizing the case against codefendant Howard Commons. The reference to Howard Commons being with a convicted felon at a bar downtown was not focused directly on defendant. The courts of this state have always been extremely sensitive to the merest likelihood that improper mention of an accused’s past criminal record might prejudice the proceedings against him. See People v. Greenway (1962), 365 Mich 547, and People v. Camel (1968), 11 Mich App 219. However, the record discloses that defendant’s attorney did not move for a mistrial, and we hold that his objections to so marginal a remark are therefore waived. Finally the defendant argues tha4 the trial court erred in its charge to the jury when the judge, sua sponte, stated as follows: “Now in this case the defendant, Melvin Hugh Budary, has not taken the stand. “Under our law the defendant may take the stand or elect not to do so. When he does not take the stand in his behalf counsel have no right to comment on that, nor has the court any right to comment about it, and you have no right to take that into consideration in any manner in arriving at your verdict. It is his right to take the stand, or he may elect not to do so, as he shall choose, and you are not in any sense to construe that against him.” Defendant urges that due process demands nothing short of silence regarding defendant’s exercise of his constitutional right, unless such a charge is requested by the defendant. Defense counsel did not advise the trial judge that he wanted no instruction on the defendant’s failure to take the stand, nor did he object to the instruction after it was given. Furthermore, the co-defendant, Howard Commons, took the stand in his own behalf and under such circumstances it would appear that a precautionary instruction in this regard was appropriate and likely inured to the benefit of the defendant. United States Supreme Court cases which prohibit adverse comment regarding the defendant’s failure to take the stand are not in point where, as here, the trial court clearly instructed the jury that they could not consider the defendant’s failure to testify in any way. Affirmed. All concurred.

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Lesinski, C. J. As a result of a certification election, the Fitzgerald Education Association (FEA) is the exclusive representative for collective bargaining purposes of all 287 teachers employed by defendant Board of Education of the Fitzgerald Public Schools. See MCLA §423.209 (Stat Ann 1968 Rev § 17.455[9]) and MCLA § 423.211 (Stat Ann 1968 Rev § 17.455 [11]). Pursuant to this authority, the FEA and defendant entered into a collective bargaining agreement covering wages, hours and other terms and conditions of employment of the 287 Fitzgerald school system teachers, for the period of July 1, 1968, through June 30, 1970. Pursuant to MCLA § 423.215 (Stat Ann 1968 Rev § 17.455 [15]), and §423.211, supra, the collective bargaining agreement established detailed procedures for the handling of teacher complaints, questions and grievances concerning wages, hours, and other terms and conditions of employment. Plaintiff Marilyn Mellon is a teacher employed by the defendant Board of Education and is a beneficiary of the above collective bargaining agreement. She apparently became aggrieved of certain actions, including harassment and reassignment, by her school principal. Although recognizing the procedures provided by the bargaining agreement, plaintiff elected to present a direct grievance petition to the defendant board. The board denied the plaintiff’s request for a hearing on her petition as being outside the collectively agreed-upon procedures. Plaintiff then instituted a circuit court action seeking a writ of superintending control over the defendant. Defendant’s motion for summary judgment was denied and an order was issued mandating a full hearing on plaintiff’s petition. At the outset we note that the Fitzgerald Education Association has indicated a willingness to consider and process plaintiff’s grievances through the established procedures. On appeal defendant argues that plaintiff does not have a statutory or contractual right to a full hearing on her direct petition to the school board. In the absence of a clear, legal right, the Board is not under a clear legal duty to grant a hearing. Hence, argues defendant, an order of superintending control (in the nature of mandamus) may not issue. Taylor v. Ottawa Circuit Judges (1955), 343 Mich 440; GCR 1963, 711.2. We agree. MCLA § 423.211 establishes the exclusive bargaining authority of the elected representative. However, in a provisio to § 423.211, the right of an individual teacher to present grievances is recognized. “Provided, That any individual employee at any time may present grievances to his employer and have the grievances adjusted, without intervention of the bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect, provided that the bargaining representative has been given opportunity to be present at such adjustment.” The purpose of the proviso is twofold: First, to permit individual teachers to present certain grievances to the school board without the delay or formality of grievance procedures, or where the bargaining agent is acting capriciously; and second, to permit the employer to negotiate directly with the individual teacher without being in violation of MCLA §§423.210, 423.215 (Stat Ann 1968 Rev §§ 17.455[10], 17.455[15]) which proscribe unfair labor practices and evasion of the collective bargaining agreements. The permissive character of the language of the proviso is readily apparent when compared to the mandatory language of § 423.215: “A public employer shall bargain collectively with the representatives of its employees as defined in § 11 (MCLA § 423.211 [Stat Ann 1968 Rev § 17.455 (11)]).” (Emphasis supplied.) If the employer desires to settle individual grievances without the intervention of the bargaining representative, the proviso gives him the power. However, since the proviso requires an individual adjustment to be consistent with the collective bargaining agreement, the employer may elect to proceed under the agreement’s procedures in the first place rather than, risk rebargaining over the same issues. This same conclusion has been reached by the Michigan Labor Mediation Board in Strayer v. Avondale School District Board of Education (1967), Case No. C66 F-71, and the Federal courts (interpreting 61 Stat 143 (1947), 29 USC § 159[a], the National Labor Relations Act § 9[a], the Federal counterpart of MCLA §423.211), in Broniman v. Great Atlantic & Pacific Tea Company (CA 6, 1965), 353 F2d 559, cert den (1966), 384 US 907 (86 S Ct 1343, 10 L Ed 2d 360), and Blach-Clawson Company, Inc., v. International Association of Machinists Lodge 355 (CA 2, 1962), 313 F2d 179. Therefore, since the school board was not under a duty to provide plaintiff with an individual grievance hearing, it was error for the trial court to compel such a hearing. The order of superintending control is reversed. This case is remanded for entry of summary judgment in favor of defendant. All concurred. The Fitzgerald Education Association has been permitted to file a brief amicus curiae in this case. This same language is incorporated in the instant collective bargaining agreement. Since the employer agreed to the collective bargaining aspects of the agreement, it is illogical to suppose that the board would also agree to individual bargaining as of right.

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Fitzgerald, P. J. This Court is faced with two cases which have been consolidated for purposes of this appeal, the same statement of facts being applicable in both instances. The original actions dealt with and arose out of the amendment to the statute known as the “Hutchinson Act”. It is concerned with the right of county employees to organize and bargain collectively with their respective governmental employers over rates of pay, wages, conditions of employment and hours of work. The initial dispute arose on March 22, 1966, when the Wayne County Board of Supervisors adopted a resolution which established a three-member labor relations board for the express purpose of com plying with the requirements of PA 1965, No 379 (MCLA § 423.209 [Stat Ann 1968 Rev § 17.455(9)]), amending PA 1947, No 336, and establishing collective bargaining for public employes. The act provides that: “It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.” In § 15 of the act, collective bargaining is made an employer duty, the act specifically providing that: “A public employer shall bargain collectively with the representative of its employees as defined in § 11 and is authorized to make and enter into collective bargaining agreements with such representatives.” The labor relations board, which consisted of representatives of the board of supervisors, Wayne County Civil Service Commission and the Wayne County Road Commission, began collective bargaining sessions. This, in effect, displaced the civil service commission in bargaining for rates of pay and terms and. conditions of employment. In April, 1967, the Wayne County Civil Service Commission filed an action against the Wayne County Board of Supervisors, the Wayne County Road Commission and the Wayne County Labor Relations Board, seeking a declaratory judgment for determination of the collective bargaining rights of the respective parties. The case came on to be heard by a three-judge panel of the Wayne County Circuit Court. On March 26,1968, the court entered a declaratory judgment, with one judge dissenting, which determined that the County of Wayne was the employer under PA 1965, No 379 (MCLA § 423.209 [Stat Ann 1968 Rev § 17.455(9)]) and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. All parts of PA 1941, No 370 (MCLA § 38.401 et seq. [Stat Ann 1961 Rev § 5.1191 (1) et seg.]) which were inconsistent were declared repealed by implication or suspended. Subsequently, on April 9, 1968, plaintiff filed a claim of appeal to the circuit court which was denied. The court also denied a motion for new trial and a motion to amend the judgment. On August 8, 1968, defendant Wayne County Board of Road Commissioners filed a claim of appeal. We are primarily concerned with the issue of whether the trial court erred in its determination that the County of Wayne was the employer under PA 1965, No 379, and that the Wayne County Board of Supervisors was empowered to act for the employer in establishing rates of pay and other terms and conditions of employment through the labor relations board. More succinctly stated, we are asked to determine who actually is the employer of employees of Wayne county for the purpose of collective bargaining and negotiation. We note that this problem exists because the legislature in drafting PA 1965, No 379, failed to specifically define the term “employer” for purposes of collective bargaining under the act. It is the contention of the plaintiff civil service commission that the County of Wayne is the em ployer and that the civil service commission is the exclusive body to represent the County of "Wayne and all bodies within the county in matters dealing with terms and conditions of employment, salaries and wages of all employees of this governmental unit in the classified service. On the other hand, defendant Board of Wayne County Road Commissioners avers that it is the employer of its own employees. The Board of Wayne County Supervisors takes a slightly different tack and maintains that the County of Wayne is composed of joint employers and the board of supervisors is the branch of government within the county upon whom the duties and responsibilities arising under PA 1965, No 379, are imposed. We note that this whole action comes to us as a by-product of the passage of PA 1965, No 379, supra. After a careful examination of the pertinent provisions of this act, nowhere within it is the term “public employer” defined. This oversight is the crux of the problem with which we are faced. Nowhere within the statutory confines of “P.E.R.A.” can be found any standards to aid in this determination. In reviewing the dissenting opinion entered in this cause, we find the general characteristics of identification of an employer are: (1) that they select and engage the employee; (2) that they pay the wages; (3) that they have the power of dismissal; (4) that they have the power and control over the employee’s conduct (35 Am Jur, Master and Servant, § 3, p 445). A most significant requisite of one who is an employer is his right to exercise control over the method by which the employee carries out his work. Hence, before we can reach a proper conclusion to this controversy it is neces sary to determine what authority and power' each of the parties to this litigation have with regard to the employment relationship. The powers of the Wayne County . Civil Service Commission are set forth in PA 1941, No 370 (MCLA § 38.409 [Stat Ann 1961 Rev § 5.1191(9)])., Thus, the civil service commission has authority to: “[P]rovide by regulation for the hours and conditions of service, for the length and period of vacations, and for the regulation of sick leaves in the county service, and for such other matters pertaining to the carrying out of the provisions of this act.” Its powers are more specifically delineated in MCLA §38.412 (Stat Ann 1969 Cum Supp §5.1191 [12]) which states: “(a) It shall classify all the offices and positions of employment with reference to the examinations herein provided for, excepting as herein otherwise provided; “(b) Shall from time to time make; in accordance with the provisions hereof, rules adopted to carry out the purposes of this act and not inconsistent with its provisions for the examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment, and for the selection of persons to be employed in the service of the county; “(c) Shall supervise the administration of the (civil service rules, hold examinations thereunder from time to time, giving notice thereof, • prepare .and keep an eligible list of persons passing such .examinations and certify the names of persons thereon to the appointing officers of the several departments ; “(d) Shall, by itself or otherwise, investigate the enforcement of the provisions of this act, of its own rules and of the action of appointees in the classified service. In the course of such investigation, the commission or its authorized representative, shall have the power to administer oaths, and the commission shall have power by its subpoena, to secure both the attendance and testimony of witnesses and the production of books and papers relevant to such investigation; “(e) Shall provide, through the purchasing department of the county, all needed supplies for the use of the commission. “(f) The classification shall be subdivided into groups and shall be based upon, and graded according to the duties and responsibilities of such positions, and shall be so arranged as to permit the filling of the higher grades through promotion. All salaries shall be uniform for like service in each grade of the classified service as the same shall be classified and standardized by the commission. Such classification and standardization of salaries shall not be final until approved by the board of supervisors and such salaries shall not be paid except in accordance with such classification and standardisation; “(g) Shall have such other powers and perform such other duties as may be necessary to carry out the provisions hereof.” As can readily be seen from an examination of the aforementioned powers and duties, the civil service commission is clothed with some of the characteristics of an employer. However, while the plaintiff must classify positions and submit uniform pay plans for standardizing salaries, it does not have exclusive control over classification and standardization of salaries, for this must be approved by the board of supervisors. The Wayne County Board of Supervisors has a duty to represent the county and to have “care and management of the property and business of the county in all cases where no provisions have been otherwise made.” (MCLA § 46.11 [Stat Ann 1969 Cum Supp §5.331]). The board of supervisors must also approve all decisions made by the county civil service commission. Hence, it is clear that the responsibility for final approval of all contract salary provisions lies with the supervisors. It appears from the foregoing that the board of supervisors does not hold all of the identifying characteristics of an employer and must function in conjunction with the civil service commission and the particular appointing authority. The Wayne County Road Commission is also a creature of statute, with specific duties and functions. (MCLA § 224.9 [Stat Ann 1958 Rev § 9.109]). The specific intent of the legislature in granting the commission authority over certain employer activities can be found in MCLA 1969 Cum Supp § 224.10 (a) (Stat Ann 1969 Cum Supp §9.110[1]), the pertinent language states: “(1) The board of county road commissioners may participate in the cost of, or provide life, health and accident, and hospitalization insurance for, employees under its jurisdiction and their dependents in any county where the board of supervisors has not made such benefits available to the employees pursuant to the provisions of § 12a of Act No 156 of the Public Acts of 1851, as amended, being § 46.12a of the Compiled Laws of 1948. * # # “(5) Nothing in this section shall prohibit or restrict a board of county road commissioners xoho have prior to January 1, 1968 entered into a collective bargaining agreement from participating in a pension or insurance program for those of its em ployees who are. members of a collective bargaining unit * . * * (Emphasis supplied.) The parties have stipulated: the road commission has-the-power to hire, fire, demote, promote, discipline and -pay its employees performing road work, subject to PA 1941, No 370, as amended, since its adoption, in 1942. An examination of the statutes cited, supra, will indicate that although there is no specific language authorizing road commissions to bargain collectively with their employees, the language appears to indicate that the legislature so intended. The case of Labor Mediation Board v. Jackson County Road Commissioners (1962), 365 Mich 645, indicates that a board of road commissioners is regarded as a public employer, and hence should be permitted to bargain collectively with its employees under the specific terms of P.E.R.A. In view of the above analysis of the obligations and powers of the parties to the present litigation, it is apparent that there exists no single agency in .Wayne county which has the exclusive right or responsibility • to represent the county in all matters pertinent to the process of collective bargaining. In its majority opinion, the trial court ruled that provisions of PA 1941, No 370, which were inconsistent with PA 1965, No 379, were repealed by implication. - We'disagree with this position, as both statutes'are capable of being reconciled. PA 1965, No 379, has changed the field of public employment only to the extent that the employees may now join a union and bargain collectively with employers. Since Act No 379 does not specifically define the word “employer,” bargaining must be carried out within the framework of the law already in existence. From an examination of both statutes, it seems fair to say that PA 1965, No 379 did not undertake to change the character of the employer or transfer any duties, but gave the representative of the employees the right to deal with the particular employer as he found him. Therefore, the statutory enactments dividing up the prerequisites and functions among several county agencies will have to be recognized. While this is not the simplest solution to the difficult problem with which we are faced, and though it may even tend to confuse and complicate the area of collective bargaining within Wayne County, it is the only plausible solution under the confines of the present statutory law. Our holding is most adequately explained by the dissenting opinion which states in part: “The courts are without authority to bring their concept of judicial order out of what the litigants feel is legislative chaos, unless, of course, the statute is unconstitutional. Nor is it the prerogative of the courts to simplify the procedure by ignoring statutes, no matter how numerous or difficult.” We therefore reverse the decision of the lower court and adopt in full the answer in the dissenting opinion to the questions posed in the prayer of the original complaint, which is as follows: “I. Plaintiff performs some of the functions of the public employer, but certainly not all; that plaintiff’s contention that the civil service commission is the only body empowered to negotiate with public employee unions on matters set out in § 11 of Act 379 is unsupported by law; that the “public employer” is the County of Wayne and that plaintiff, the board of supervisors, the county road commission and other agencies of the county are empowered by law to, and therefore must, perform those functions delegated to them in dealing with public employees and their conditions of employment; “II. The public employer is the County of Wayne and its functions as an employer are carried out by various entities, such as the board of supervisors, the civil service commission and, to a lesser extent, the Wayne County Road Commission and other appointing authorities. “III. The board of supervisors — in carrying out its statutory function (MCLA § 46.Í1 [Stat Ann 1969 Cum Supp § 5.331]) of having the “care and management of the property and business of the county in all cases where no other provisions shall be made” (emphasis supplied) has the right and responsibility to carry out the requirements of Act 379 as to determining adequate bargaining units and the recognition of exclusive agents of employees and may utilize a vehicle such as the labor relations board to investigate and recommend appropriate action to the board of supervisors. “IV. There is no single body or individual in county government who has the right or responsibility, exclusively, to represent the county in matters dealing with the establishment of salaries, wages, terms and conditions of employment of employees in the classified service. “V. Act 379 has not terminated or modified the power and authority of the civil service commission under Act 370, except that as the repository of some of the powers of the employer, they as well as others holding such powers, have the duty to bargain in good faith, etc. “VI. Neither the board of supervisors nor the Wayne County Road Commission has the authority to delegate to the labor relations board the duties and responsibilities of the civil service commission under Act 370.” Reversed. No costs, a public question. T. M. Burns, J., concurred. PA 1941, No 370 (MOLA § 38.401 [Stat Ann 1961 Bev § 5.1191 (1)]), established a civil service system for the County of Wayne.

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J. H. Gillis, P. J. This appeal requires interpretation of a few, relatively simple words. They are these. “At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions: “(1) Any deposition may be used by any party for the purpose of impeaching the testimony of deponent as a witness. “(2) The deposition of a party or anyone who at the time of the transaction or occurrence out of which the action arose or at the time of taking the deposition was an officer, director, employee, or agent of any party may be used by an adverse party for any purpose.” GOB, 1963, 302.4. The question presented is whether the trial court erred in allowing certain deposition testimony to be used against defendants-appellants as substantive evidence. I Facts and Proceedings. On February 2, 1965, plaintiff commenced this medical malpractice action against a group of radiologists, defendants, Holly, Joistad, Johnston and Holly, individually and as copartners. The complaint alleged that on April 1,1964, plaintiff was sent by his employer to Holly’s medical office located in Muskegon, Michigan, for radiological diagnosis of possible injury to his right arm; that an X-ray was taken which disclosed a fracture; that plaintiff, through his employer, was informed that no fracture existed; and that thereafter plaintiff, thinking he had no fracture, continued to work and sought no further medical care, although suffering pain and discomfort in his right arm. It was alleged that the standards of radiological practice in Muskegon and similar communities required that defendants inform plaintiff of the fracture after discovering its existence, and that defendants failed to exercise due care in accordance with those standards of practice. Plaintiff further claimed that the continued use of his arm aggravated the fracture, subjecting plaintiff to physical and mental pain; and that, as a result of defendants’ alleged malpractice, he suffered permanent injuries to his right arm, including traumatic radio-ulnar arthritis. Holly’s answer admitted that an X-ray had been taken and that it disclosed a fracture of plaintiff’s right arm. However, the allegations of malpractice were denied. Defendants denied informing plaintiff that the X-ray revealed no fracture. It was alleged that, in accordance with standard radiological practice, a report of the fracture was given to Dr. E. J. Lauretti, the plaintiff’s treating physician. Defendants also denied that plaintiff had suffered any damage as a result of the alleged malpractice. On June 4, 1965, plaintiff, pursuant to OCR 1963, 302.1, deposed Dr. Lamberíais Mulder, a physician who practiced in Muskegon together with Dr. E. J. Lauretti. Mulder’s testimony was taken upon oral examination, with Holly’s counsel appearing on behalf of defendants. Mulder was asked whether his office had received any report of plaintiff’s fracture from Holly. Mulder testified that his office had received a report from Holly’s office disclosing the fracture, but he could not remember when the report was received. He also testified that he first became aware of the report on April 21,1964. On that date, plaintiff had been sent to Mulder’s office by his employer for treatment of his right arm. After reviewing the report, Mulder diagnosed plaintiff’s condition as a nondisplaced fracture of the right arm’s distal radial styloid. A cast was placed on plaintiff’s arm by Dr. Mulder. During the course of his deposition testimony, Dr. Mulder was also asked a lengthy hypothetical question, Plaintiff’s counsel inquired of Mulder whether. in his opinion, a failure to immobilize a non-displaced fracture of an arm’s radial styloid during a three-week period of intensive use of tbe fractured arm could cause traumatic arthritis of tbe arm’s distal ulna. Tbe doctor responded that, assuming arthritis subsequently developed in tbe arm’s wrist, “you’d have to assume that tbe joint bad been aggravated by tbe prolonged period of inadequate immobilization prior to tbe cast application.” On October 29, 1965, plaintiff filed a motion, subsequently granted, to add Mulder and Lauretti as party defendants and to file an amended complaint. Tbe amended complaint likewise charged Mulder and Lauretti with malpractice. As against tbe added defendants, plaintiff claimed that they were informed on or about April 1, 1964 of tbe existence of the fracture, and that thereafter it was their duty to report tbe fracture to plaintiff or to bis employer. Mulder’s failure to act and resulting damage to plaintiff were also alleged. Tbe damages claimed were tbe same as those alleged in tbe suit against Holly. Mulder’s answer denied malpractice. Mulder further denied that plaintiff bad suffered any permanent injuries, including traumatic radio-ulnar arthritis, as a result of any failure to act on his part. At trial, plaintiff called defendant Mulder as an adverse party for cross-examination. See MOLA § 600.2161 (Stat Ann 1962 Rev § 27A.2161); GCR 1963, 507.4. During the course of bis testimony, Mulder acknowledged that tbe answers be gave in bis deposition testimony were true. Thereafter, at tbe conclusion of bis examination of Dr. Mulder, plaintiff’s counsel offered Mulder’s deposition in evidence, relying on “tbe rule which permits tbe use of tbe deposition of tbe opposing party.” Plaintiff’s counsel also relied on tlie ground that Mulder had acknowledged at trial the truth of his deposition testimony. Holly’s counsel objected and took the position that Mulder’s deposition was inadmissible as against the defendant Holly. A precautionary instruction to this effect was requested by Holly’s counsel, but the request was denied. The trial court reasoned : “You had notice of the deposition, you were there, and it is binding on the defendant Holly.” The trial court ruled that plaintiff’s counsel could use Mulder’s deposition for any purpose, including its use as substantive proof as against defendant Holly. Plaintiff’s counsel then read Mulder’s deposition testimony to the jury, including Dr. Mulder’s response to plaintiff’s hypothetical question. In due course, plaintiff’s case against Holly and Mulder went to the jury. A verdict was returned against the defendants-radiologists in the amount of $20,000. As ag’ainst Mulder, the jury found no cause of action. Following denial of a motion for judgment notwithstanding the verdict or for new trial, defendant Holly appeals. It is well settled that in order to recover for the negligence of a physician, plaintiff must show that such negligence was a proximate cause of the injury for which damages are sought. Morgan v. Engles (1964), 372 Mich 514, 516, and cases there cited. And, as a rule, this showing is one requiring expert testimony. See Annotation, “Proximate Cause in Malpractice Cases,” 13 ALR2d 11, 22; Farrell v. Haze (1909), 157 Mich 374; Miller v. Toles (1914), 183 Mich 252. In the present case, plaintiff claimed, in part, that the failure to immobilize his fractured arm caused traumatic arthritis of the arm’s distal ulna. In order to substantiate this claim, the testimony of at least one expert witness was required. This Court bas held that in malpractice actions the plaintiff, if able, is entitled to rely exclusively upon the expert testimony of the very doctor he is suing. See Giacobazzi v. Fetser (1967), 6 Mich App 308. Such is the case here, since the only testimony offered to substantiate the alleged connection between a failure to immobilize plaintiff’s arm and the arthritic condition subsequently found to exist was that of Dr. Mulder given at deposition. On appeal, defendant Holly contends that the judgment below must be reversed since plaintiff failed to prove by competent evidence any causal relationship between Holly’s negligence and an injury for which damages were sought — namely, traumatic arthritis of the right arm’s distal ulna. No claim is made that plaintiff failed to prove malpractice ; however, defendant Holly renews his contention that, as against Holly, Mulder’s deposition testimony — specifically, Dr. Mulder’s response to plaintiff’s hypothetical question — was inadmissible as substantive evidence. For reasons hereafter discussed, we agree. II Use of the Mulder Deposition. The use of a deposition at trial is governed by the provisions of G-CR 1963, 302.4. Subsection (1) of Rule 302.4, upon which plaintiff relies, entitles any party to use a deposition for the purpose of impeaching the testimony of the deponent as a witness. It is obvious, however, that prior to the use of a deposition for impeachment purposes the deponent must first give testimony at trial inconsistent with his testimony at deposition. See Ruhala v. Roby (1967), 379 Mich 102, 113. In the present case, Mulder was never asked by plaintiff’s counsel whether, in his opinion, the failure to immobilize a nondisplaced fracture of an arm’s radial styloid could cause traumatic arthritis of the distal ulna. Impeachment on this issue was, therefore, impossible since Mulder had not testified, when questioned by plaintiff’s counsel, concerning the alleged causal relationship. Contrary to plaintiff’s contention, GrCE. 1963, 302.4(1) provides no basis for the introduction of that portion of the Mulder deposition suggesting that a failure to immobilize plaintiff’s fractured arm might result in traumatic arthritis of the arm’s distal ulna. Nor are we persuaded that Mulder’s acknowledgement at trial of the truth of his deposition testimony established a sufficient foundation for the introduction, as against Holly, of Mulder’s deposition testimony concerning the alleged causal relationship. In this regard, plaintiff relies upon Schratt v. Fila (1963), 371 Mich 238. See also Perry v. F. Byrd, Inc. (1937), 280 Mich 580. In the Schratt case, defendant Fila, when questioned by plaintiff’s counsel at trial, gave testimony in conflict with a statement made by Fila prior to trial. "When confronted at trial with the prior statement, Fila admitted its truth. It was held that, once defendant Fila admitted at trial the truth of the prior inconsistent statement, it was admissible as substantive evidence against defendant Ziegler. We think both Schratt and Byrd, are distinguishable. In the present case, nothing appears in Mulder’s testimony at trial, in response to questions put to him by plaintiff’s counsel, that is inconsistent with his testimony at deposition concerning the alleged causal relationship. We need only repeat that at trial plaintiff’s counsel never asked Mulder whether the alleged malpractice might have caused plaintiff’s present condition — traumatic arthritis of the right arm’s distal ulna. Plaintiff also contends that the Mnlder deposition was admissible in evidence against Holly by virtue of subsection (2) of G-CR 1963, 302.4. That subsection provides: “The deposition of a party * * * may be used by an adverse party for any purpose.” Plaintiff constructs the following argument. Mulder was a party to this litigation; plaintiff was an adverse party. Therefore, Mulder’s statement concerning causation was admissible for any purpose, i.e., as substantive evidence. Furthermore, Rule 302.4 provides that any part of a deposition may be used against any party who was present at the taking of the deposition. Plaintiff concludes that, since defendant Holly was present when Mulder was deposed, Mulder’s statement can be used against Holly as substantive evidence. We disagree. In Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich App 204, 207, this Court explained the use of deposition testimony under subsection (2) of Rule 302.4 as follows: “The difference in the practices allowed in paragraphs (2) and (3) of the Rule is based on the distinction between the status of the deponent as a party capable of making admissions affecting his cause, or the party simply as a witness. Wigmore distinguishes the status of the deponent as well (5 Wigmore on Evidence [3d ed], § 1416, p 194): “ ‘The general rule that the witness must be shown unavailable for testifying in court does not apply to a party’s use of his party opponent’s deposition * * * for the simple reason that every statement of an opponent may be used against him as an admission without calling him.’’ ” (Emphasis supplied.) Subsection (2), thus construed, is merely a restatement of the long recognized rule of evidence that statements of a party which are inconsistent with his claim in litigation are substantively admissible against that same party. Accord, Community Counselling Service, Incorporated v. Reilly (CA 4, 1963), 317 F2d 239, 243. See also, 4 Wigmore, Evidence (3d ed), § 1048, p 2; 4 Moore, Federal Practice (2d ed), § 26.29, p 1653. However, it is an equally well established rule of evidence that the admissions of one defendant are not admissible in evidence against a codefendant. “By hypothesis, an admission is a statement elsewhere made by the present party and now offered against him as inconsistent with and contradictory of his present claim made in the pleadings or evidence. Who, then, is the ‘party’, i.e. the litigating^ person, whose admissions may thus be now turned against himself ? * * * “The probative process consists in contrasting the statements of the same person made now as litigant and made formerly elsewhere, and it is in that view that it becomes necessary to define the identity of the person. It follows that the statements of one who is confessedly a distinct person B do not become receivable as admissions against A merely because. B is also a party. In other words, the admissions of one coplaintiff or codefendant are not receivable., against another, merely by virtue of his position ás' a copartv in the litigation.” 4 Wigmore, Evidence (3d ed),'§ 1076, pp 112, 113, 115. See also, Ruhala v. Roby, supra, at 119. In the present case, Mulder’s testimony at deposition concerning causation was inconsistent with his position at trial. By-his answer, Mulder had denied any relationship between the alleged malpractice and traumatic radio-ulnar arthritis. By definition, Mulder’s statement at deposition constituted an admission. That admission, however, could only be used against Mulder. It could not be employed against defendant Holly. And although Mulder was a party at the time the deposition was offered in evidence, his statement regarding causation was not, thereby, admissible against Holly. Accord, Davis v. Sedalia Yellow Cab Company (Mo App, 1955), 280 SW2d 869. An express provision of Rule 302.1 supports our conclusion. That provision is as follows: _ “At the trial * * * any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition * * * .” (Emphasis supplied.) Notwithstanding Holly’s presence at the taking of Mulder’s deposition, Mulder’s response at deposition to plaintiff’s hypothetical question could not be used against Holly at trial for the reason that, as to Holly, his response was inadmissible under the rules of evidence. Two additional reasons lead us to conclude that subsection (2) provides no basis for the use of Mulder’s deposition testimony concerning causation against defendant Holly. The first is the very rationale which forbids use of the admissions of one party against a coparty. “[Ojrdinary fairness would forbid such a license; for it would in practice permit a litigant to discredit an opponent’s claim merely by joining any person as the opponent’s coparty and then employing that person’s statements as admissions. It is plain, therefore, both on principle and in policy, that the state ments of a coparty (while usable of course against himself) are not usable as admissions against a co-party.” 4 Wigmore, Evidence (3d ed), § 1076, p 115. Likewise, were we to accept the construction of subsection (2) urged by plaintiff, we would enable a party-plaintiff to discredit his opponent’s claims merely by joining as codefendant any person from whom plaintiff could obtain at deposition statements contrary to the position of the original defendant. Furthermore, it is clear that had plaintiff brought two separate suits, as he could have, Mulder could only have been employed as a witness in the separate controversy against defendant Holly. Mulder’s deposition in such a suit would be inadmissible in evidence against Holly under subsection (2), GrCR 1963, 302.4, for the reason that Mulder would not be a party to that litigation. "We refuse to permit misapplication of the rules governing use of depositions merely because the two suits can be tried together. Cf. Napier v. Bossard (1939), 102 F2d 467-469. We conclude that it was error to permit the use, as substantive evidence, of Mulder’s deposition testimony concerning causation against defendant Holly. As that testimony was incompetent, plaintiff’s case against Holly, insofar as it alleged a causal relationship between Holly’s negligence and traumatic arthritis of the distal ulna, must fail for want of proof. No other expert medical testimony was offered to substantiate the alleged relationship. It was, therefore, error for the trial court to submit the question of damages for this injury to the jury. Fabbro v. Soderstrom (1930), 252 Mich 455. See also, Brown v. Arnold (1942), 303 Mich 616, 626. Moreover, we are satisfied that the error materially affected the size of the verdict. Defendant is entitled to a new trial. GrCR 1963, 527.1(4). We limit retrial to damages only, as the only error concerned the amount of the verdict. Trapp v. King (1965), 374 Mich 608. We refuse, as requested by defendant Holly, to reverse outright, as a review of the record reveals that plaintiff had, by competent proof, established compensable injuries suffered as a result of Holly’s negligence. Cf. Rogers v. Kee (1912), 171 Mich 551. Plaintiff had alleged and there was proof in support of his claim to damages for pain and suffering. Defendant Holly’s other contentions need not be considered. The judgment is reversed and remanded to the trial court for partial new trial limited to damages only, All concurred. Defendants-appellants are hereafter collectively referred to as “Holly.” Hereafter referred to as “Mulder,” Plaintiff las not appealed the judgment entered in Mulder’s favor against him. It should be noted that there is nothing in the record suggesting any privity of interest or agency existing between Mulder and Holly so as to make Mulder’s admissions equally available as against Holly. See 4 Wigmore, Evidence (3d ed), § 1070, p 69.

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Lesinski, C. J. Plaintiffs brought the instant suit to recover damages under the guest passenger statute for injuries sustained due to defendant’s alleged gross negligence. Defendant Platt was an uninsured motorist and the record discloses that he was not served with a copy of the summons and complaint. Under the Motor Vehicle Accident Claims Act, plaintiffs served the Secretary of State with a summons and complaint. The Secretary of State has defended the case both below and in this Court. Defendant Platt did not appear at trial and apparently has not been located to date. From judgment for plaintiffs, defendant brings this appeal as of right. On August 21, 1966, plaintiffs Clinton Ashford, Georgia Johnson and Gertrude Williams were passengers in a car owned and operated by defendant. While driving on Mount Morris Road near the intersection with Henderson Road in Genesee County, the car went out of control and turned over several times, resulting in physical injuries to the passengers. At trial, after the close of defendant’s proofs, plaintiffs moved for a directed verdict on the issue of liability for gross negligence. The trial court granted the motion, over defendant’s objections, leaving for the jury only the issue of measure of damages. The sole issue raised on appeal is whether the trial court erred in directing the verdict on the issue of gross negligence. Two well-recognized rules apply in the instant case. On a motion for directed verdict, the court must view the evidence in the light most favorable to the party against whom direction is sought. McGrath v. Hargraves (1945), 310 Mich 510. A motion for directed verdict may only be granted where, on the issue directed, the record is such that reasonable minds could not differ. United States Fire Insurance Company v. Grand Trunk W. R. Co. (1955), 344 Mich 270. The elements of gross negligence or willful and wanton misconduct were set forth in Tien v. Barkel (1958), 351 Mich 276, 281, 282, as follows: “ ‘(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’ ” The Tien decision also noted that each guest passenger case is sui generis in its factual circumstances and that no purpose is served by detailed examination of the numerous, and in some instances “irreconcilable,” decisions construing the term gross negligence. As with all gross negligence cases, an examination of the evidence adduced at trial is necessary. Six witnesses testified to the events surrounding the accident: the plaintiffs, the state trooper who arrived at the scene after the accident, and Mr. and Mrs. Zickafoose, who were riding in their car seven or eight hundred feet ahead of defendant’s automobile. The witnesses were all in basic agreement concerning weather and road conditions. The day was dry and clear. Mount Morris Road had a loose gravel surface, pitted with “small chuck holes” at the time of the accident. The plaintiffs testified that although defendant’s driving had not been unreasonable before turning onto Mount.Morris Road, it became quite erratic at that point. Georgia Johnson testified that she rode in the front seat on the passenger side. She stated that she could see the speedometer and that defendant was driving 65 to 70 miles per hour on Mount Morris Road. She repeatedly asked him to slow down, but each time he simply said “okay” and maintained the same speed. She testified that the other passengers made similar requests, only to be met with similar results. She further stated that defendant was weaving across the center of the road. It was her opinion that defendant tried to turn from Mount Morris onto Henderson Road, a right angle turn, but was going too fast. The result was that the ear rolled over several times. Gertrude Williams, who sat in the front between Mrs. Johnson and defendant, also testified that defendant was driving 70 miles per hour and was “zigzagging” down the road. She too stated that she had warned defendant of his excessive speed and that at one point she had said “Lord, we are going to have a wreck.” Clinton Ashford, who was riding in the hack seat, stated that defendant was driving “65, 70 — 65 miles an hour to my estimation.” He stated that after the passengers in the front had asked defendant to slow down and had been ignored, he leaned over the front seat and asked “What’s the rush?” Ashford also testified that defendant was weaving back and forth across the road. He was uncertain as to whether defendant tried to turn onto Henderson Road or whether he swerved to avoid a ditch when the car rolled over. Although the plaintiffs testified that they believed defendant was intoxicated, the three uniformly admitted that they did not see him drinking prior to the accident. They stated that their belief was based solely on defendant’s behavior which they alleged to be “reckless.” As these witnesses are all parties, and thus interested in the result of the suit, a question of credibility arises. The general rule regarding the credibility of witnesses was stated in Michigan Pipe Company v. Michigan Fire & Marine Insurance Company (1892), 92 Mich 483, 488: “To justify a court in instructing a jury that a witness has told the truth, and in directing a verdict based upon the truthfulness of his evidence, there must be nothing in the circumstances or surroundings tending to impeach the witness, or to throw discredit upon his statements. If there is anything tending to create distrust in his truthfulness, the question must be left to the jury. Druse v. Wheeler, 26 Mich 195.” (Emphasis supplied.) In the instant case, however, with the sole exception of the alleged warnings given defendant, the sub stance of each of the allegations concerning defendant’s actions is supported by not only plaintiffs’ witnesses, but also the defense witnesses. Herman Zickafoose, a witness called by defendant, testified that he observed defendant’s car in his rear-view mirror while riding approximately seven to eight hundred feet ahead of defendant. He stated that he was traveling at about 40 to 45 miles per hour, and that while he could give no exact estimate of defendant’s speed, defendant’s car “looked as if it was coming pretty fast, and it might be like it was— weaving around in the road.” Emma Zickafoose, another defense witness, also testified that she looked back and saw defendant’s car “coming at a pretty good speed.” The state trooper, called by plaintiff, stated that when he arrived at the scene the car was lying on its “top or side.” It was his opinion that the cause of the accident was excessive speed for the road conditions. He issued a speeding ticket to defendant. He also testified that he could smell alcohol on defendant’s breath. We are, thus, presented with a case where not only are plaintiffs’ versions of the accident completely uncontradicted, but also where all the elements tending to establish gross negligence, which are capable of verification by impartial witnesses, are supported by both defendant’s own witnesses and the investigating officer from the Michigan State Police. As stated by the Court in Holbert v. Staniak (1960), 359 Mich 283, 290: “Where the testimony as to a fact is not disputed, the jury should be instructed to find it accordingly. Dondero v. Frumveller, 61 Mich 440. “Where all of the evidence on both sides tends clearly to prove a fact, such fact may, and generally should, be assumed as proved; and in such case a charge to the jury indicating that it is competent for them to find either way is error. Druse v. Wheeler, 26 Mich 189.” See, also, Ortega v. Lenderink (1968), 10 Mich App 190. Defendant argues that numerous inconsistencies exist in the testimony of the three plaintiffs. A review of the record, however, satisfies us that if inconsistencies exist at all, they are not relevant to the central fact issue of the case, which is: what was defendant’s conduct as he drove down Mount Morris road? We conclude, therefore, that where, as here, there is uncontradicted testimony that defendant was weaving back and forth while driving 65 to 70 miles per hour down a loose gravel road, pitted with chuckholes, all the while ignoring numerous warnings by all three passengers, and where all these elements except the warnings are supported in substance by the testimony of defendant’s own witnesses, reasonable minds could not differ in concluding that defendant was guilty of gross negligence. The trial court was correct in directing the verdict on issue of gross negligence. Affirmed. Costs to plaintiffs. MOLA § 257.401 (Stat Aim 1968 Rev § 9.2101). MCLA § 257.1105 (Stat Ann 1968 Rev § 9.2805). Plaintiff Otis Johnson sues to recover the medical expenses of Uis wife, Georgia Johnson, allegedly resulting from the accident. The jury returned verdicts in the amount of $1,500 for Clinton Ashford, $5,000 for Georgia Johnson, $879.87 for Otis Johnson, and $7,000 for Gertrude Williams. Reference hereinafter to plaintiffs includes only those who were passengers in defendant’s vehicle, unless otherwise indicated. The estimate of this distance was given by Mr. Zickafoose in liis testimony.

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Per Curiam. On July 10,1963, the municipal court for the city of Muskegon Heights granted defendant, Associates Loan Company, a consent judgment against the plaintiff. The judgment was not recoverable on a voluntary basis, and was transcribed to the Mqskegon circuit court on November 15, 1963. Subsequently, several writs of garnishment were issued in an unsuccessful attempt to satisfy the judgment. On August 3, 1964, a writ of execution was issued from the Muskegon county circuit court, and pursuant thereto, levy was made on plaintiff’s 1955 model automobile which he claimed was exempt from levy by virtue of MCLA § 600.6023a(5) (Stat Ann 1970 Cum Supp § 27A.6023a[5]). Plaintiff never attempted to contest this levy by judicial proceedings, but rather filed suit on September 30, 1964, alleging an abuse of process. At the conclusion of plaintiff’s proofs, the trial court granted a summary judgment in favor of defendants. There are two elements necessary to prove an abuse of process. “First, an ulterior purpose must be shown. Second, defendant must perform an act which is improper in the regular conduct or prosecution of a proceeding.” Pilette Industries, Inc., v. Alexander (1969), 17 Mich App 226, 227, 228. Garnishment after judgment is a legitimate and frequently-used procedure to satisfy a claim evidenced by a judgment; MCLA § 600.4011 (Stat Arm 1962 Rev § 27A.4011); and the same can be said for a writ of execution on assets of the debtor. MCLA § 600.6001 et seq. (Stat Ann 1962 Rev § 27A.6001 et seq.). Although the particular property might have been exempt from execution under MCLA § 600.6023a(5) (Stat Ann 1970 Cum Supp § 27A.6023a[5]), it cannot be said that execution was for some ulterior purpose as the debt is admittedly owed. After considering all available evidence in a light most favorable to the plaintiff, Lepley v. Bryant (1953), 336 Mich 224, the trial judge did not err in granting summary judgment to the defendant. Affirmed. Costs to defendant.

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Per Curiam. The parties hereto were divorced on December 16, 1963, and custody of their minor child was awarded to defendant mother. On February 8, 1964 defendant left the child with plaintiff to go to California to remarry. On February 13, 1964 the father petitioned the court for a change of custody and cancellation of support order. The support order was modified, but the court did not specifically order a change in custody. In July, 1967 defendant mother filed a petition for an order to show cause why plaintiff should not be cited for contempt for failure to observe the original decree as to custody. The order was denied. Upon appeal to this Court the denial of the order was upheld and the matter was remanded for the entry of a current order of custody (see Dimmick v. Dimmick [1968], 15 Mich App 7). Upon a petition of defendant, couched in the following language, the present hearing was had and custody continued in plaintiff father: “WHEREFORE, your petitioner prays: “1st. That this court set a date certain for a hearing in compliance with the decision of the Court of Appeals in Dimmick vs. Dimmick; and if at such hearing the respondent is unable to show that said petitioner is an unfit and improper person to have the care, custody and control of the minor child, that the court enter its Order requiring him to immediately deliver possession of this said child to the petitioner so that she will not only have legal custody but possession of said child. “2nd. That this court modify the order entered in this case on the 24th day of February, 1964 so as to reinstate support as ordered by the Judgment of Divorce and to direct the return of the possession of the minor child to the petitioner herein.” Upon appeal defendant contends that the court improperly held a hearing to determine custody. The petition of defendant requested a hearing in accord with the decision of the Court of Appeals. Plaintiff’s answer also indicated that such a hearing would be held. The pleadings of the parties provided adequate notice to defendant that a hearing would be had with regard to custody. There was no error in conducting such a hearing. The February, 1964 decision of the lower court has subsequently been interpreted in several proceedings, and it has been indicated that a modification of the divorce decree with respect to custody was intended. This interpretation is supported by the actions of the lower court and is a proper one under the circumstances. The hearing in the instant case therefore was merely a clarification of the earlier decision modifying the divorce decree. The order granting custody to the father based on the overriding consideration of what is for the best interest of the child and contrary to CL 1948, § 722-.541 (Stat Ann 1957 Rev § 25.811) is clearly supported by the record and we find no abuse of discretion. Affirmed, with costs to plaintiff.

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Blair Moody, Jr., J. The issue is whether plaintiffs have made a prima facie showing under the Michigan environmental protection act, MCL 691.1201 et seq.; MSA 14.528(201) et seq., that the drilling of ten exploratory wells in the Pigeon River Country State Forest will constitute a likely impairment or destruction of natural resources. We hold: I) that the question of the likely effects of the ten exploratory wells was properly before the trial court; II) that the trial judge erred in deferring to the Department of Natural Resources conclusions as to the likelihood of impairment of natural resources rather than exercising his own totally independent judgment; III) that the evidence adduced at trial conclusively demonstrates that the drilling of the ten exploratory wells for which permits have been granted will likely result in an impairment or destruction of elk. Plaintiffs have thereby made out a prima facie case under MCL 691.1203(1); MSA 14.528(203)(1). We reverse and remand to the trial court for entry of a permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August 24, 1977. Facts In 1968 the Department of Natural Resources (DNR) sold oil and gas leases covering 546,196.89 acres of state-owned land, including 57,669 acres in what is now known as the Pigeon River Country State Forest (Pigeon River Forest or Forest). Since that time, 19 oil and gas wells have been drilled in the Forest, five of which have been and are now producing wells. Over a period of years, various plans to provide for controlled oil and gas development in the Forest were considered by the DNR. A management plan (the "limited development plan”), allowing oil and gas development in the southern one-third of the Forest while prohibiting development in the northern two-thirds, was submitted by the Director of the DNR, Howard Tanner, to the Natu ral Resources Commission (NRC). The DNR was asked to prepare an Environmental Impact Statement with respect to this management plan. In December, 1975, the Environmental Impact Statement (EIS) was completed. The DNR then commenced negotiations with oil companies holding leases in the Forest in an attempt to have them agree to the development scheme set forth in the proposed management plan. On June 11, 1976 the NRC entered into an agreement entitled "Stipulation Consent Order” with Shell Oil Company, Amoco Production Company, and Northern Michigan Exploration Company. The consent order adopted the limited development plan allowing oil and gas development in the southern one-third of the Forest, subject to certain enumerated conditions and restrictions. The West Michigan Environmental Action Council (WMEAC) and the Pigeon River Country Association (PRCA) filed a motion to intervene in In the Matter of Hydrocarbon Development in the Pigeon River Country State Forest and moved for a hearing to be held on the June 11, 1976 consent order. On August 13, 1976 the NRC rejected this motion on the basis that it was premature and should properly be granted only when permits were applied for. On June 12, 1977 Shell Oil Company applied for permits to drill ten exploratory wells in the limited development region. On August 24, 1977 the Supervisor of Wells granted these permits. On September 17, 1976 plaintiffs filed the com plaint in this action under the Michigan environmental protection act claiming that the consent order was entered into unlawfully and was likely to lead to the impairment of wildlife in the Forest. Plaintiffs sought an order restraining the state from issuing any permits to drill for oil and/or gas in the Forest or from implementing the June 11, 1976 consent order. On December 5, 1977 the court rendered its final decision against plaintiffs and denied a motion for a stay and/or injunctive order pending appeal. On December 7, 1977 an appeal was filed in the Court of Appeals. The Court of Appeals denied plaintiffs’ motion for an injunctive order pending appeal on December 15, 1977. The following day plaintiffs filed an application for leave to appeal with this Court and requested an injunction pending that appeal. On December 22, 1977 this Court granted the injunctive request. 402 Mich 836 (1977). Later, on January 5, 1978 we granted the motion for an appeal prior to decision by the Court of Appeals. 402 Mich 845 (1978). I The record below is unclear as to what conduct of defendants is alleged as being "likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein”. MCL 691.1203(1); MSA 14.528(203X1). Specifically, it is uncertain whether the action of the Supervisor of Wells in granting ten permits on August 24, 1977 to drill exploratory wells for oil and gas was a part of such conduct. Part of the confusion resulted from plaintiffs’ failure to amend their September, 1976 complaint to specifically attack the validity of the permits issued in August, 1977, despite their offer to do so at an October, 1977 pretrial conference, As a result, there was uncertainty in the proceedings below as to whether the validity of the permits was ever properly put in issue before the court. Nonetheless, all parties presented evidence on the likely effect of the drilling of the ten wells. Furthermore, the trial court chose to address the issue of the likelihood of pollution, impairment or destruction from the drilling activities contemplated by the ten permits. We conclude that the issuance of the permits to drill ten exploratory wells was properly before the circuit court as conduct alleged to be likely to pollute, impair and destroy the air, water or other natural resources or the public trust therein. The effects of these permits were comprehensively treated at the trial level, both by the parties and by the circuit judge. Further, the consent order, which the trial court recognized was designed to be a "legally enforceable” document, stated that "[a]s many as ten test wells may be drilled for verification of seismic information. Specific drilling locations for these wells shall be determined by the oil companies and the director in consultation with the Public Service Commission”. Therefore, plaintiffs’ allegation that the consent order is likely to lead to pollution, impairment or destruction of the natural resources of the Pigeon River Country State Forest can fairly be said to include within it an allegation that the issuance of permits for drilling test wells will have such result, the issuance of these permits being an inevitable consequence of the adoption of the consent order. II Plaintiffs allege that the trial court deferred to the DNR’s conclusion that no pollution, impairment or destruction of the air, water or other natural resources or the public trust therein was likely to result from the contemplated drilling. Plaintiffs claim that such deference constituted error by the trial court and that the court had a responsibility to independently determine whether such pollution, impairment or destruction would occur. We agree that the trial court so erred. While we understand the trial judge’s reluctance to substitute his judgment for that of an agency with experience and expertise, the Michigan environmental protection act requires independent, de novo determinations by the courts. The act declares that "[principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act”. MCL 691.1203(1); MSA 14.528(203X1). Furthermore, the Legislature specifically addressed the relationship between suits brought under the environmental protection act and administrative proceedings: "(2) If administrative, licensing or other proceedings are required or available to determine the legality of the defendant’s conduct, the court may remit the parties to such proceedings which proceedings shall be conducted in accordance with and subject to the provisions of Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.313 of the Compiled Laws of 1948. In so remitting the court may grant temporary equitable relief where necessary for the protection of the air, water and other natural resources or the public trust therein from pollution, impairment or destruction. In so remitting the court shall retain jurisdiction of the action pending completion thereof for the purpose of determining whether adequate protection from pollution, impairment or destruction has been afforded. "(3) Upon completion of such proceedings, the court shall adjudicate the impact of the defendant’s conduct on the air, water or other natural resources and on the public trust therein in accordance with this act. In such adjudication the court may order that additional evidence be taken to the extent necessary to protect the rights recognized in this act. "(4) Where, as to any administrative, licensing or other proceeding, judicial review thereof is available, notwithstanding the provisions to the contrary of Act No. 306 of the Public Acts of 1969, pertaining to judicial review, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.” (Emphasis supplied.) MCL 691.1204; MSA 14.528(204). Additionally, § 5 of the act states in relevant part: "(2) In any such administrative, licensing or other proceedings, and in any judicial review thereof, any alleged pollution, impairment or destruction of the air, water or other natural resources or the public trust therein, shall be determined, and no conduct shall be authorized or approved which does, or is likely to have such effect so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.” (Emphasis supplied.) MCL 691.1205; MSA 14.528(205). The above sections provide that the court in which suit is filed retains original jurisdiction of the matter, even if it chooses to remit parties to administrative proceedings. Moreover, the court has a responsibility to "adjudicate” and "determine” whether "adequate protection from pollution, impairment or destruction has been afforded”. Courts can discharge their responsibility to make such determinations only if they make independent, de novo judgments. In fact, MCL 691.1204(4); MSA 14.528(204)(4), specifically indicates that the usual standards for review of administrative actions under the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., are inapplicable once an environmental protection act case has been filed in a circuit court. The environmental protection act would not accomplish its purpose if the courts were to exempt administrative agencies from the strict scrutiny which the protection of the environment demands. Shortly after the environmental protection act was passed, its chief legislative sponsor stated that "[ujnder the new statute, courts may inquire directly into the merits of environmental controversies, rather than concern themselves merely with reforming procedures or with invalidating arbitrary or capricious conduct”. The Court has previously acknowledged: "In the final analysis the very efficacy of the EPA will turn on how well circuit court judges meet their responsibility for giving vitality and meaning to the act through detailed findings of fact.” Ray v Mason County Drain Commissioner, 393 Mich 294, 307-308; 224 NW2d 883 (1975). Therefore, we conclude that the trial judge erred in failing to exercise his own totally independent judgment. We find, however, no need to order remand because we conclude that a judgment in favor of plaintiffs is required on the record presented. Ill Defendants in this case have not sought to raise any affirmative defenses under MCL 691.1203(1); MSA 14.528(203)(1), but, rather, have rested their case on a denial that plaintiffs have made a prima facie showing that the conduct of defendants has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein. We find that plaintiffs have demonstrated a likelihood of impairment or destruction of natural resources, specifically of elk, as a result of the proposed drilling of ten exploratory wells. There is little, if any, dispute that the drilling of the exploratory wells will have some adverse impact upon some wildlife, particularly elk, bobcat and bear. The trial court found that "[t]here appears to be no question that adverse impacts will be visited upon particularly the elk, and to some lesser extent, bear and bobcat. * * * It is clear that an adverse impairment of the herd is likely for some unknown period to some unknown degree”. Perhaps the single most revealing piece of evidence is the Environmental Impact Statement for Potential Hydrocarbon Development in the Pigeon River Country State Forest, prepared by the DNR. Some of this statement concerns the impact of production of oil and is not relevant for present purposes. However, many of the EIS’s conclusions directly apply to the effects of exploratory drilling. Testimony before the trial court indicated that six of the ten proposed sites were not adjacent to any road, requiring that roads be built to such sites. The EIS cites studies in Montana, by the Intermountain Forestry and Range Experiment Station, 1973, which concluded that "[e]lk avoid roads even when there is no traffic”. The EIS also observed that "[w]hether the elk will return to their former range following completion of the last seismic survey work is unknown”. Seismic survey work precedes exploratory drilling and it is designed to determine whether oil might be in an area; exploratory wells are then drilled to determine if production efforts are warranted. Seismic survey work occurs over a less prolonged period than exploratory drilling and yet, apparently, may result in an extended absence of the elk to the extent that it is uncertain whether or not they will return. Exploratory drilling obviously exacerbates this problem and, in fact, the EIS notes, "with the possibility of drilling and production development following the survey, an early return by the elk is doubtful”. The EIS observes that "[t]he most pressing need of Michigan elk is to protect their range against further human intrusion for purposes other than timber or wildlife management”, and that the last remaining sanctuaries against the disturbance of oil and gas development have now disappeared. It concludes: "Additional disturbances from hydrocarbon development, new roads, initial drilling activities, and the presence of facility sites will significantly reduce elk numbers in the proposed area. It is likely that much of the existing herd will not remain in revised Unit 1, but will spread out to the northern areas of the PRCSF and to private lands. However, private lands also may be impacted by hydrocarbon development. An unknown number will not survive since habitat is ñnite. A viable population may survive, however, if intensive management efforts are established in priority areas in the northern PRCSF and if poaching can be substantially decreased throughout the elk range.” (Emphasis supplied.) The EIS also found that bobcats are "expected to retreat in the face of hydrocarbon development. The history of this species indicates a high degree of incompatibility with the works of man”. With respect to bears, the EIS states "[bjears have been pressed into wild areas of diminishing size by the increasing pressures of land development and other human disturbances throughout much of the northern Lower Peninsula. * * * It is expected that the one to two percent of the land which will be intensively developed as sites will have less impact on bears than will the development of service roads with resultant multiplied human activities and increased human contact”. Some quantification of the adverse impact of exploratory drilling on the elk can be gained from comparing the EIS’s Matrix for Proposed Hydrocarbon Development in the Southern Portion of the Forest with Dr. Inman’s testimony. Dr. Inman, who participated in the development of the EIS, testified that a slow , recovery time is considered to be 40 to 50 years or more, a short recovery time less than 20 years, and a great recovery time is about 100 years or more. The Environmental Impact Matrix predicts that elk will be adversely affected by the development of roads and pads. These are associated with even exploratory drilling. The Environmental Impact Matrix defines a significant adverse impact as "a change in the element that is impacted from its present status to a status that may take a long time for recovery, at least during the duration of the project”. Applying Dr. Inman’s definitions of what constitutes a slow recovery time to the ma trix predictions, it would appear that elk would avoid the impacted areas for 40 to 50 years. As noted above, the trial court conceded that the exploratory drilling would have an adverse effect upon wildlife. However, the trial court determined that this adverse impact did not constitute impairment or destruction of a natural resource because such adverse impacts are "commonly the result of management decisions. Improving deer habitat by cutting trees to allow the sun to shine on the forest floor for the purpose of new growth, it certainly has an adverse impact upon the animals, birds, so forth, using the trees. Eradicating the entire fish population in a lake or stream to destroy unwanted trash species in order to plant more acceptable fish certainly has an adverse impact on the fish killed but is an acceptable management technique. * * * These animals, along with the trees that will be cut, harvested, or otherwise removed, are the innocent victims of the discovery of oil in their forest domain”. This determination reveals a fundamental misconception. If nature is allowed to pursue its own course, the growth and expansion of some species will inevitably result in the diminution and possible extinction of others. Faced with a situation where an adverse impact will occur naturally unless some action is taken, it is a management decision to determine whether such natural processes should proceed or whether, through human intervention, the adverse impact should artificially be shifted to other species. The choice is not whether an adverse impact will occur, but, rather, upon what. If oil or gas development does not take place, the oil and gas will not be adversely impacted. On the other hand, if such development does take place, wildlife is adversely affected. Thus, the choice is whether or not any adverse impact on natural resources will be allowed. We recognize that virtually all human activities can be found to adversely impact natural resources in some way or other. The real question before us is when does such impact rise to the level of impairment or destruction? The DNR’s environmental impact statement recognizes that "[e]lk are unique to this area of Michigan” and that the herd is "the only sizable wild herd east of the Mississippi River. Several attempts to introduce elk elsewhere in Michigan have been unsuccessful”. It is estimated that the herd’s population, which numbered in excess of 1500 in 1963, now probably lies between 170 and 180. Expert testimony has established that the Pigeon River Country State Forest, particularly unit 1 in which the exploratory drilling is to take place, provides excellent habitat for elk and that the elk frequent this area. Furthermore, it is clear from the record that available habitat is shrinking. The result of a further shrinkage of this habitat by the intrusion of exploratory drilling and its concomitant developments is that "an unknown number [of elk] will not survive”. In light of the limited number of the elk, the unique nature and location of this herd, and the apparently serious and lasting, though unquantifiable, damage that will result to the herd from the drilling of the ten exploratory wells, we conclude that defendants’ conduct constitutes an impairment or destruction of a natural resource. Accordingly, we reverse and remand to the trial court for entry of a permanent injunction prohibiting the drilling of the ten exploratory wells pursuant to permits issued on August 24, 1977. Williams, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J. Levin, J. The issue is whether plaintiffs made a prima facie showing under the environmental protection act that the drilling of ten exploratory wells in Unit 1 of the Pigeon River Country State Forest will constitute a likely impairment or destruction of natural resources. We would vacate the judgment of the trial court and remand to it for further proceedings, retaining jurisdiction. I In 1968 the Department of Natural Resources (DNR) sold oil and gas leases covering 546,196.89 acres of state-owned land including 57,669 acres in what is now known as the Pigeon River Country State Forest (PRCSF). Since that time, 19 oil and gas wells have been drilled in the PRCSF, 5 of which are producing wells. Over a period of years, various plans to control oil and gas development in the PRCSF were considered by the DNR. A management plan, allowing oil and gas development in the southern one-third of the PRCSF while prohibiting development in the northern two-thirds, was submitted by the Director of the DNR to the Natural Resources Commission (NRC). The DNR was asked to prepare an Environmental Impact Statement (EIS) with respect to the management plan, which was completed in December, 1975. The DNR then negotiated with oil companies holding leases in the PRCSF in an effort to have them agree to the management plan. On June 11, 1976 the NRC entered into a "Stipulation Consent Order,” intended to be legally binding, with Shell Oil Company, Amoco Production Company, and Northern Michigan Exploration Company. The consent order adopted the management plan allowing oil and gas development in the southern one-third of the PRCSF, subject to certain conditions and restrictions. Plaintiffs West Michigan Environmental Action Council and the Pigeon River Country Association moved to intervene in administrative proceedings concerning the consent order and sought a hearing. On August 13, 1976 the NRC rejected this motion on the basis that it was premature and could properly be granted only when permits were applied for. On June 12, 1977 Shell Oil Company applied for permits to drill ten exploratory wells in the limited development region and on August 24, 1977 the Supervisor of Wells granted these permits. Before the permits were applied for, on September 17, 1976, plaintiffs commenced this action under the environmental protection act claiming that the consent order was not lawfully entered into and was likely to lead to impairment of wildlife in the PRCSF. They sought an order restraining the state from issuing any permits to drill for oil or gas in the PRCSF or in any other way implementing the consent order. On December 5, 1977 the court found against plaintiffs and denied a motion for a stay pending appeal. We granted leave to appeal prior to decision by the Court of Appeals and injunctive relief pending appeal. II Plaintiffs contend that the judge deferred to the DNR’s conclusion that no pollution, impairment or destruction of the air, water or other natural resources or the public trust therein was likely to result from the contemplated drilling. The judge’s comments in this regard are unclear, but are subject to that construction. We agree with the plaintiffs that such deference would constitute error. A judge has a responsibility to determine independently whether pollution, impairment or destruction is likely to occur. While we can understand a judge’s reluctance to substitute his judgment for an agency’s informed decision, a stance generally appropriate when reviewing decisions of an administrative agency, the environmental protection act provides for a separate, independent determination by a court. Not only does the act declare that "[principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act”, the Legislature specifically addressed the relationship between actions brought under the environmental protection act and administrative proceedings. The usual standards for review of administrative actions under the Administrative Procedures Act are not applicable. As recently stated in Superior Public Rights, Inc v Department of Natural Resources, 6 Env L Rptr 20435, 20437 (Ingham Circuit Court [1976]), where this issue was raised: "[T]o rule that the reviewing court is bound by the administrative fact finding would be but to destroy one of the central thrusts and purposes of [MEPA] — to watchdog the controlling governing agencies themselves in order to guarantee that they do not by inadvertence become the captives of the very entities they are seeking to control and/or fail to recognize, due to ingrained myopia, inertia and bureaucratic complacence, the very environmental dangers they were established to prevent.” (Digest.) Ill Defendants have not sought to raise affirmative defenses under the environmental protection act, but have rested on a denial that plaintiffs made a prima facie showing that the conduct of defendants is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein. There is little dispute that drilling the exploratory wells will have adverse impact upon some wildlife, particularly elk, bobcat and bear. The judge found that "[t]here appears to be no question that adverse impacts will be visited upon particularly the elk, and to some lesser extent, bear and bobcat. * * * It is clear that an adverse impairment of the herd is likely for some unknown period to some unknown degree”. He determined, however, that this adverse impact did not constitute impairment or destruction of a natural resource because such adverse impacts are "commonly the result of management decision. Improving deer habitat by cutting trees to allow the sun to shine on the forest floor for the purpose of new growth, it certainly has an adverse impact upon the animals, birds, so forth, using the trees. Eradicating the entire fish population in a lake or stream to destroy unwanted trash species in order to plant more acceptable fish certainly has an adverse impact on the fish killed but is an acceptable management technique. * * * These animals, along with the trees that will be cut, harvested, or otherwise removed, are the innocent victims of the discovery of oil in their forest domain.” He particularly relied on the testimony of Dr. Inman, who had expressed the opinion that, although the drilling would have an adverse impact on certain species of animals, it would not have an adverse impact on the overall environment of the forest. The examples of management technique offered by the judge are inapposite. If nature is allowed to take its own course, the growth and expansion of some species may result in the diminution and possible extinction of others. Faced with a situation where an adverse impact may occur naturally unless some action is taken, it is a management decision to determine whether such natural processes should proceed or whether, through human intervention, the adverse impact should be shifted to other species. That choice, however, is not whether an adverse impact on a natural resource will occur at all but what species will bear the burden of it. The Environmental Impact Statement states that "[e]lk are unique to this area of Michigan” and that the herd is "the only sizeable wild herd east of the Mississippi River. Several attempts to introduce elk elsewhere in Michigan have been unsuccessful”. (Emphasis supplied.) It is estimated that the herd’s population, which numbered in excess of 1500 in 1963, is now probably between 170 and 180. Testimony established that the PRCSF, particularly Unit 1 in which the exploratory drilling is to take place, provides a favorable habitat for elk and that elk have frequented the area. Further, the available habitat is shrinking. It appears that the result of a further shrinkage by the intrusion of exploratory drilling is that some elk will not survive. In light of the limited number of elk and the unique nature and location of this herd, there is evidence that defendants’ conduct may impair or destroy a natural resource. We refrain, however, from deciding whether plaintiffs made a prima facie case that defendants’ conduct is likely to impair or destroy a natural resource within the meaning of the environmental protection act for reasons stated in part IV, infra. IV The complaint alleged: "The [consent] order will or is likely to lead to pollution, impairment and/or destruction in the natural resources of the [Pigeon River Country State Forest].” At the trial, it was unclear whether the conduct so alleged as "likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein” was or should be treated as limited to the effects of the consent order or whether it included the effects of issuing ten permits to drill exploratory wells for oil and gas. Eleven months after the complaint was filed, in August, 1977, the Supervisor of Wells, pursuant to the consent order, granted ten permits to drill exploratory wells. Plaintiffs then sought an injunction restraining the oil companies from exercising their rights under the permits. The circuit court denied a preliminary injunction. In September, 1977 plaintiffs appealed to the Court of Appeals which denied relief because no drilling activity could occur under the permits between then and November 30 and plaintiffs therefore would suffer no irreparable harm by denial of injunctive relief. Noting that there had not yet been a trial on the merits, the Court of Appeals ordered: "This cause be, and the same hereby is remanded for immediate trial which shall commence on or before October 10, 1977 and proceed to conclusion on an expedited schedule.” The Court of Appeals, thus, apparently expected that the validity of the ten drilling permits would be contested at the trial on plaintiffs’ original complaint. Plaintiffs did not amend their complaint to specifically attack the validity of the permits. The judge indicated that he would allow such an amendment, but none was filed. As a result, there was uncertainty at the trial whether the propriety of issuing the permits themselves was properly in issue. Plaintiffs presented evidence on and argued the likely effect of drilling ten wells. The judge, in his findings of fact, ultimately ruled that such effects were not in issue. He said, however, that although the effects of drilling the ten wells were "not well pled and with no attempt to amend, * * * in consideration of the court’s perhaps too liberal policy in giving the plaintiffs leeway”, he had addressed the issue of the likelihood of pollution, impairment or destruction from the drilling activities contemplated by the ten permits. The consent order stated that "[a]s many as ten test wells may be drilled for verification of seismic information. Specific drilling locations for these wells shall be determined by the oil companies and the director in consultation with the Public Service Commission”. While the question of production was left unresolved by the consent order, some test wells were to be drilled. It was only their location that was to be determined by the Director of the DNR. Plaintiffs’ allegation that the consent order is likely to lead to pollution, impairment or destruction of the natural resources of the PRCSF can fairly be said to include within it the effect of issuing permits for drilling test wells, the issuance of the permits being an inevitable consequence of the adoption and implementation of the consent order. We would, however, remand to the circuit court for further proceedings because the defendants may have been denied an opportunity to present evidence on the issue of likely impairment or destruction from the drilling of ten test wells by a belief, shared by the judge, that the effect of test drilling was not in issue. We would vacate the judgment of the trial court and remand to it for further proceedings, and retain jurisdiction. Coleman, C.J., and Kavanagh, J., concurred with Levin, J. Similar consent orders were later negotiated with Sun Oil Company, Michigan Consolidated Gas Company, Getty Oil Company, and Chevron Oil Company, such that the only oil and gas lease in the Forest not covered by a consent order was that for Corwith 1-22, the subject of litigation in Michigan Oil Co v Natural Resources Commission, 406 Mich 1; 276 NW2d 141 (1979). Press release, Michigan Passes Landmark Environmental Law, July 2, 1970, State Representátive Thomas Anderson. The record supports this finding. Gary Boushelle, the DNR wildlife biologist who approved the ten sites, agreed that there would be a "severe adverse environmental effect for some wildlife species”. E. Ford Kellum, a wildlife biologist and a former employee of the DNR, stated that Unit 1 of the Forest, in which the exploratory drilling is to occur, has "unique, almost endangered species, elk, bear and bobcat, osprey and a bald eagle, of which this was the center of where it looked like if they were going to survive the human race it’s gonna’ be here”. Mr. Kellum testified that his experience at Charlton 1-4 and other wells led him to the observation that once drilling occurred in an elk habitat the elk no longer returned there. Mr. Ned Caveney, the area forester in charge of the Forest, stated that it has been necessary to restrict snowmobiles in the Forest, even though each snowmobile represented only a temporary intrusion, in order "to improve and increase favorable elk habitat, and * * * to provide seclusion for wildlife”. Mr. Robert Strong, the district wildlife biologist in Gaylord, in charge of overseeing development of management plans for elk, bear and bobcat, noted that elk need large blocks of land since they normally range over 10 to 25 miles. He noted that the area in which the proposed drilling is to take place presently provides excellent habitat for elk, is within their range, and that they are commonly seen there. He stated that each well site would adversely affect elk up to two to three miles away. Mr. Strong also stated his opinion that the effect on wildlife did not differ "whether there was 10 or 40” wells drilled, and concluded that a logical environment defense line for elk would rule out any further well drilling in that Forest. Mr. Strong further testified that there has been a steady decline in bobcat population due to loss of habitat and increased development, and that the drfiling of wells would have an adverse effect on bear and bobcat although he could not qualify within what radius each site would affect those animals. Nelson Johnson, Jr., the DNR regional wildlife biologist for the northern half of the Lower Peninsula, agreed with Mr. Strong’s statement that elk would be adversely affected within a two- to three-mile radius around each drilling site. Mr. Johnson stated that the sites proposed for. drilling offered good habitat for elk, and had previously noted the effects of a reduction in available habitat in his testimony in Michigan Oil Co v Natural Resources Commission, supra. In that case he had stated: "If they drill a well, there are not going to be a lot of elk, and bobcats and bear drop dead. But because of their aversion to this type of thing — especially the elk — and the history of how this animal has become almost extinct over almost 80 to 95 percent of its former range, indicates it is a sensitive animal. Their pattern of use of the area is going to be disrupted, and we believe and think that our research which we have carried on in our state in the past — this elk herd is going to be less able to make use of the range and therefore, since there is a limited place where they can go, sooner or later it is going to result in decrease of their population.” Dr. Donald Inman, of the Office of Environmental Review of the DNR, stated in a letter that the results of drilling in the Forest would be "that those species of wildlife for which pqople value the Forest and those which are susceptible to man-made disturbances will, in all probability, be reduced in number”. MCL 691.1201 et seq.; MSA 14.528(201) et seq. In 1973, the DNR published a "Concept of Management” for the PRCSF. In January, 1975, a specific proposal for unitized development of the oil and gas in the PRCSF was presented to the DNR. A revised proposal was presented in October, 1975 which was published for public comment and review. Similar consent orders were later negotiated with Sun Oil Company, Michigan Consolidated Gas Company, Getty Oil Company, and Chevron Oil Company. However, Corwith 1-22, the subject of Michigan Oil Co v Natural Resources Commission, 406 Mich 1; 276 NW2d 141 (1979), was not covered by a consent order. MCL 691.1203(1); MSA 14.528(203X1). MCL 691.1204, 691.1205; MSA 14.528(204), 14.528(205). MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 691.1203(1); MSA 14.528(203X1). MCL 691.1203(1); MSA 14.528(203)(1). The consent agreement states with respect to production of oil and gas: "It is further agreed by the parties that before production of oil and gas takes place in the limited development region, the oil companies shall submit to the Director for his approval a development plan and an environmental assessment.” (Emphasis supplied.)

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Per Curiam. Plaintiff Fannon, discharged from his clerical job with the City of Southfield, has raised issues on this appeal involving, inter alia, excessive punishment, due process of law, and protected union organizational rights. We order that Fannon’s punishment must be reconsidered, and remand for further proceedings. Fannon was hired by the city in 1974 and performed his duties ably until his discharge. He was discharged because of insubordination and violation of trust. In May of 1975, Fannon took a list of employees’ names and addresses to a union organizer who copied the list and mailed union solicitation information to the employees. The list was compiled in connection with health insurance coverage for city employees. A city employee complained of the mailing, to her home, of union information, and city officials investigated how the home addresses had been obtained. Fannon refused to answer certain questions during the investigation although he did acknowledge, in response to a question at the final questioning session about the release of the list, that he was involved in union activities. Because of the parallel between the facts of this case and the facts of Brown v Department of State Police, 392 Mich 811 (1974), we conclude, as we did in Brown: "Discharge was manifestly an excessive and arbitrary discipline unjustified on this record.” In Brown, a State Police officer was discharged for entering government offices under his supervision, copying certain documents found there, showing this information to third parties, and at first refusing to answer certain questions thereon. The release of a list of names is not specifically covered by § 12.1 of the city’s civil service rules, and the city’s response to Fannon’s pleadings in this Court does not set forth a specific rule governing the release of lists of employee names. We find the situation much like the one described in Osborne v Bullitt County Board of Education, 415 SW2d 607 (Ky, 1967), and therefore dismiss charges (1), (2), (4), and (5) alleged by the city, each of which relate to Fannon’s use of the list. We do not intimate, in so dismissing, that the city may not, by civil service rule, promulgate an appropriate rule to protect the confidentiality of city records concerning its employees. The remaining charge, (3), related to Fannon’s refusal to obey a superior by refusing to answer questions concerning the release of the list of names. We recognize the validity of Gardner v Broderick, 392 US 273; 88 S Ct 1913; 20 L Ed 2d 1082 (1968), which was relied on by the Court of Appeals in resolving what it perceived as a self-incrimination question. We believe Gardner does not control this situation, however. In Gardner, during a grand jury investigation of alleged bribery and corruption by police officers, a police officer refused to sign a waiver and refused to testify in connection with the investigation. This case involved the release of a list of names for union organizing purposes. Michigan Employment Relations Commission Rule 423.445(2) is a recognition that a list of employee names and addresses is not so confidential that the city can forever bar it from union scrutiny. However, it is true that Rule 423.445(2) was not observed by Fannon and the union, and we cannot overrule the civil service commission’s finding of Fannon’s cul pability for failing to directly answer questions as to the release of the list. Accordingly, on consideration of plaintiff’s application for leave to appeal, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the decisions of the lower courts and remand to the Southfield Civil Service Commission so that body may reconsider Fannon’s punishment and determine. if necessary, any amount of back pay he is entitled to. Costs to appellant. Kavanagh, Williams, Levin, and Blair Moody, Jr., JJ., concurred. "Section 12.1 Tenure of Employment "The tenure of everyone holding office, place, position or employment in the City’s service shall be only during good behavior and efficient service, and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges for inefficiency, incompetency, insubordination, dishonesty, drunkenness, immoral conduct, discourteous treatment of the public, neglect of duty, violation of the provisions of the rules of the Civil Service Commission, of the City Charter, as amended, or any other act or omission detrimental to the good of the City service. The Civil Service Commission shall have the power to review all dismissals and all suspensions imposed.” These were the charges against Fannon: "(1) For your actions in compiling a list of names and addresses of city employees and passing this list on to a third party despite your knowledge that such information is of a confidential nature; (2) For your action in releasing information from city records without obtaining the prior approval of your supervisor which is required as a matter of operating procedure; (3) For your insubordinate actions in deliberately refusing to obey the order of Deputy City Administrator Robert X. Caldwell to answer his questions as to whether or not you had released a list of names and addresses of city employees to a third party without obtaining prior authorization; (4) For violating the trust placed in you by the city that you would handle confidential information in the course of your work and that you would protect the confidentiality of that information; and (5) For violating the trust placed in you by the city that you would conduct yourself in an honest manner and with integrity in your on-the-job contacts with individuals in positions of authority over you.” Rule 423.445(2): "At least 7 days prior to the date of an election, excluding Saturdays, Sundays, and legal holidays, the employer shall submit to the commission and other interested parties a list of the names and addresses of all eligible voters in alphabetical order. This requirement may be modified by mutual agreement of the parties, or by order of the commission, or its agent.” Decision and Findings of June 20, 1975: "(3) The Commission finds that Brian Fannon was indeed insubordinate as charged when he refused to answer relative [sic] questions ordered by Robert X. Caldwell, Deputy City Administrator, on Tues day, May 27, 1975 despite the fact that he had been advised by his own legal counsel and by an Assistant City Attorney for the City of Southfield that there was no criminal liability involved.”

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Levin, J. The issue is whether a circuit judge may exclude the public and members of the press from a criminal trial simply because the defendant requested it and the prosecutor did not object. We hold that a judge may not do so. Section 1420 of the Revised Judicature Act entitles the public to attend the sittings of every court. While this right is not absolute, we need not now decide what is sufficient cause to exclude the public and hold only that mere agreement of parties to a suit is insufficient. I An elementary school teacher was charged with criminal sexual conduct in the first and second degrees with one of her male students who was ten years old. At the time of trial the boy was twelve years old. At a pretrial hearing defendant’s lawyer made a motion to exclude all members of the press and public from the hearing and from the subsequent trial. The assistant prosecutor made no objection and the judge granted the motion. The defendant then waived her right to a jury trial. The same day the Detroit Free Press and the reporter it had assigned to the trial filed a complaint for superintending control with the Court of Appeals. The judge adjourned the trial pending the decision of the Court of Appeals. The Court of Appeals dismissed the complaint "for the reason that the constitutional right to 'a speedy and public trial by an impartial jury’ is a personal right of the accused, and, if waived, may not be invoked by a third party”. The Free Press filed a complaint for superintending control in this Court. We granted immediate consideration but denied the request for immediate relief. The trial thereupon resumed and the judge found the defendant not guilty. II The statute provides: "The sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security.” MCL 600.1420; MSA 27A.1420. The statute was not adverted to by the judge at the time of his decision to exclude the public and press. Nor did the Court of Appeals refer to it in its order. No reason was offered by defendant for closing the trial. The judge did not inquire whether there were any reasons justifying closure or offer any of his own. The prosecutor did not object to the motion, stating only "the defendant has a right to a public trial, it is within her discretion to waive that right”. We are thus confronted with a situation in which the legislative mandate that "[t]he sittings of every court within this state shall be public” was disregarded with no apparent justification. None of the statutory exceptions permits closing this trial; national security was not involved and excluding the public went beyond the authority to exclude witnesses or minors. The parties may not, by their mere agreement, empower a judge to exclude the public and press. When a motion for closure is made, the judge should, at a minimum, take testimony at a hearing open to all interested parties, explore the constitutional and statutory validity of any proffered justifications for excluding the public and press from any portion of the trial, and determine whether any alternative and less restrictive mechanisms exist. This was not done here and, hence, the closing of the trial was improper. Reversed. Coleman, C.J., and Kavanagh, Williams, Fitzgerald, and Ryan, JJ., concurred with Levin, J. Blair Moody, Jr., J. I agree with the result reached in this opinion. I disagree, however, with any implication that there may be sufficient cause to exclude the public under this statute, except in cases involving national security. MCL 600.1420; MSA 27A.1420. MCL 750.520b and 750.520c; MSA 28.788(2) and 28.788(3). "It is further ordered that the emergency application for superintending control be, and the same is hereby dismissed for the reason that the constitutional right to 'a speedy and public trial by an impartial jury’ is a personal right of the accused, and, if waived, may not be invoked by a third party.” "Mr. Trim: For the record, your Honor, Roger L. Trim, appearing on behalf of the defendant in this matter, * * *. Your Honor, at this point, we would like to ask the court to entertain a motion to exclude members of the public from this trial. We have consulted with our client and it’s her wish, and she is certain, her wish, that these proceedings be closed to the general public. [Defendant] has been totally informed, that of course, the right to a public trial is her right to assert, and knowing this, knowing that she has this constitutional guarantee, she has instructed us to request the court to entertain a motion to bar members of the public from this proceeding. "Mr. Dardy: I have no objection to that motion, your Honor. "The Court: That is the only position you have, you have no objection, you’re not quarreling with the law? "Mr. Dardy: I agree, that the law is, the defendant has a right to a public trial, it is within her discretion to waive that right. "The Court: Very well. Anyone not involved will remove themselves from the courtroom. "Mr. Trim: Thank you, your Honor. "The Court: The motion is granted. That includes everyone.” The statutory right of the public is subject to limitations imposed by the Due Process Clause guaranteeing a defendant in a criminal case a fair trial and by Const 1963, art 6, § 1, vesting the judicial power in one court of justice. There has been considerable litigation concerning the propriety of excluding the public from trials for reasons other than those stated in comparable statutes. See, e.g., Anno: Exclusion of Public During Criminal Trial, 48 ALR2d 1436; Anno: Right of Accused to Have Press or Other Media Representatives Excluded from Criminal Trial, 49 ALR3d 1007; Anno: Propriety of Exclusion of Press or Other Media Representatives from Civil Trial, 79 ALR3d 401; Fenner & Koley, The Rights of the Press and the Closed Court Criminal Proceeding, 57 Neb L Rev 442, 451 (1978).

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Kavanagh, J. (for reversal). Because the definition of "teacher” includes "all certificated persons”, MCL 38.71; MSA 15.1971, Bode, being such a person, is entitled to the protection of the teach ers’ tenure act upon satisfactory service of the probationary period. During his first two years of employment as a superintendent in Clintondale, he was subject to the provisions of MCL 38.81; MSA 15.1981, which read in pertinent part: "All teachers during the first 2 school years of employment shall be deemed to be in a period of probation.” The language in this section is mandatory ("shall”) and cannot be made ineffective by contract of the parties. Therefore, even though Bode labored under a contract denying him tenure in his superintendent position in Clintondale, that contract cannot be construed to deny service of the probationary period. The contract simply had no effect on service of probation. I do not share the view that it was illegal. Bode served two years in Clintondale without receiving notice that his work was unsatisfactory, MCL 38.83; MSA 15.1983, and thereby achieved continuing tenure in Clintondale. Upon his subsequent employment in Roseville, Bode needed to serve only one year of probation in order to attain tenure in that district. MCL 38.92; MSA 15.1992. His employment by Roseville under an oral contract as an administrative assistant from March, 1970 until July of that year, did not give him tenure as a superintendent. Nor did his employment as "acting superintendent” under the one-year contract from July, 1970 to June, 1971. Neither period of employment completed the probationary period in that classification. Such employment did, however, constitute the satisfactory completion of a one-year period of probation in Roseville entitling Bode to a tenure contract as a classroom teacher. For these reasons, I agree that Bode is entitled to tenure as a classroom teacher in Roseville. Levin and Blair Moody, Jr., JJ., concurred with Kavanagh, J. Williams, J. (for reversal). This case concerns the question whether one serving as a school superintendent can acquire tenure as a teacher. Since the teachers’ tenure act definition of "teacher” includes "superintendent” inter alia, service as a superintendent can qualify one for teacher tenure. We hold that plaintiff Bode’s service as superintendent was of such length and character as to qualify him for tenure as a teacher and the privileges thereof. The Court of Appeals is reversed. I. Facts Plaintiff Bode served in various school districts as a classroom teacher from 1950 to 1955 and as a principal from 1955 to 1958. During this time he was not eligible for tenure, because at that time there was no tenure unless the school system opted for it, and none of his school districts had. More significantly, after the tenure act became mandatory, plaintiff served as superintendent in Leslie from 1962 to 1966. He next served as superintendent in Clintondale from 1967 to 1970, when he resigned. Finally, after serving part of a year on a day-to-day basis in the Roseville School District, plaintiff was appointed as of July 1, 1970 as acting superintendent with a one-year contract. This was followed by a two-year contract as superintendent commencing July 1, 1971, but with a provision as follows: "4. The Superintendent of Schools shall not be deemed to be granted continuing tenure by virtue of this agreement.” On October 10, 1972, the school board assigned plaintiff to duties as acting superintendent. Plaintiff served as a special consultant until his employment contract expired. On or about February 7, 1973, Bode received notice he would not be employed after June 30, 1973. In October, 1972, plaintiff had petitioned the State Tenure Commission to find he had tenure as superintendent and that his reassignment as acting superintendent with duties as special consultant was improper. On June 11, 1973, the tenure commission held that the school board’s removal without notice and hearing was contrary to the tenure act, found that plaintiff had tenure as a superintendent, and ordered plaintiff restored as "Superintendent” but leaving to the school district his exact duties. The circuit court reversed the tenure commission. The Court of Appeals affirmed the reversal in an unpublished per curiam opinion. We granted leave to appeal, 399 Mich 898 (1977). II. Pertinent Tenure Act Provisions MCL 38.71; MSA 15.1971 provides: "The term 'teacher’ as used in this act shall include all certificated persons employed for a full school year by any board of education or controlling board of any public educational institution.” It is clear from this statutory language that a superintendent can be a teacher under the act. The tenure commission has so held: "We previously have held that article I, § 1 of the tenure act includes superintendent within the term teacher, Anderson v Westwood Community School District [State Tenure Commission, Docket No. 70-13].” MCL 38.81; MSA 15.1981 provides: "All teachers during the first 2 school years of employment shall be deemed to be in a period of probation.” (Emphasis added.) This provision is not limited to classroom teachers and would apply to any one defined as a "teacher” by the act. The following sections of the tenure act provide that a teacher completing the required years of probation has tenure unless notified otherwise by the controlling board. MCL 38.91; MSA 15.199Í states: "After the satisfactory completion of the probationary period, a teacher shall be employed continuously by the controlling board under which the probationary period has been completed, and shall not be dismissed or demoted except as specified in this act.” MCL 38.83; MSA 15.1983 states: "At least 60 days before the close of each school year the controlling board shall provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement shall be considered as conclusive evidence that the teacher’s work is satisfactory. Any probationary teacher or teacher not on continuing con tract shall be employed for the ensuing year unless notified in writing at least 60 days before the close of the school year that his services will be discontinued.” The act also places a limit on the number of years a teacher with tenure may be required to serve in another school district to fulfill the probation requirement. "If a teacher on continuing tenure is employed by another controlling board, he shall not be subject to another probationary period of more than 1 year.” MCL 38.92; MSA 15.1992. MCL 38.172; MSA 15.2054 prohibits a teacher from waiving any rights and privileges: "No teacher may waive any rights and privileges under this act in any contract or agreement made with a controlling board.” Under MCL 38.91; MSA 15.1991, a superintendent may waive tenure rights as a "superintendent”, but only after completion of tenure as a teacher. "If the controlling board shall provide in a contract of employment of any teacher employed other than as a classroom teacher, including but not limited to, a superintendent, assistant superintendent, principal, department head or director of curriculum, made with such teacher after the completion of the probationary period, that such teacher shall not be deemed to be granted continuing tenure in such capacity by virtue of such contract of employment, then such teacher shall not be granted tenure in such capacity, but shall be deemed to have been granted continuing tenure as an active classroom teacher in such school district. Upon the termination of any such contract of employment, if such controlling board shall not re-employ such teacher under contract in any such capacity, such teacher shall be continuously employed by such controlling board as an active classroom teacher.” (Emphasis added.) III. Application to Appellant Bode Bode has been in the field of education for 28 years, and a teacher under the act for 14 years. From 1950 to 1964, when the act became mandatory, he served in school districts which had not elected to come under its provisions. When the act became mandatory he was in the middle of a two-year contract at Leslie, Michigan. He was not reappointed in Leslie, and, because of the nature of the grandfather clause, did not qualify for tenure. Bode’s first position entirely under the act, after it became mandatory, was with the Clintondale School District from 1967-1970, as a superintendent. The rule is that at the end of the second year a teacher is deemed to have successfully completed probation and obtained tenure unless notified otherwise according to the provisions of MCL 38.83; MSA 15.1983 and MCL 38.81; MSA 15.1981. Bode was not notified that his work was unsatisfactory and should have obtained tenure. But it is claimed that Bode’s contract with the Clintondale School District containing a provision excluding tenure precluded obtaining tenure. However, the tenure act provides that a contractual waiver by a teacher in an administrative position can only be "made with such teacher after the completion of the probationary period”. MCL 38.91; MSA 15.1991. Since Bode had never achieved tenure, the waiver was illegal and of no force and effect. Consequently, plaintiff obtained tenure as a classroom teacher after his first two years of service without notification his work was unsatisfactory. Therefore, we agree with the tenure commission that "while Bode did not gain tenure as a superintendent during his employment with the Clintondale School District, he did gain tenure in position as a teacher having served for the statutory two years probationary period; * * *.” When Bode moved to Roseville, his service as acting superintendent for one year satisfied the requirement of a probationary period. MCL 38.92; MSA 15.1992. He was not notified that his work was unsatisfactory, MCL 38.83; MSA 15.1983, and therefore received tenure as a teacher. The tenure commission, however, held that Bode received tenure as a superintendent while in the position of acting superintendent. We disagree. Plaintiff could not acquire service toward tenure as a superintendent, because the resolution appointing him as acting superintendent clearly indicated that the board considered the superintendent’s position still under search. Bode had tenure when he began the contract for superintendent effective July 1, 1971. He waived his right to tenure in the administrative capacity but not as a classroom teacher. IV. Conclusion We find first that a teacher serving as a superintendent can acquire tenure as a teacher; second, that Bode completed a two-year probationary period in the Clintondale School District and acquired tenure as a teacher, since he received no notice that his work was unsatisfactory and since the waiver proviso he worked under could not apply until after he received tenure; third, that Bode completed a one-year probationary period with the Roseville School District and received tenure there as a teacher. We reverse the Court of Appeals. The teachers’ tenure act did not become mandatory until 1964, "This act shall apply to all school districts of the state.” MCL 38.151; MSA 15.2051, as amended by 1964 PA 2, § 1. "Provided, That any teacher under contract at the time this act becomes effective who has previously rendered 2 or more years of service in the same school district shall be granted continuing tenure immediately upon reappointment by the controlling board: Any such controlling board by unanimous vote of its members, however, may refuse to appoint a teacher who has rendered 2 or more years service in the school district under its control. In the event the vote against reappointment of such teacher is not unanimous the controlling board shall deem such teacher as on continuing tenure with full right to hearing and appeal as provided in article 4 and article 6 of this act: Provided further, That the controlling board, after this act becomes effective, may place on continuing tenure any teacher who has previously rendered 2 or more years of service.” MCL 38.81; MSA 15.1981.

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Per Curiam. On November 4, 1977, the State Bar Grievance Board affirmed and adopted the findings, conclusions, and order of Ingham County Hearing Panel No. 2 filed August 5, 1977. The hearing panel had found the respondent Robert A. McWhorter guilty of misconduct in his dealings with funds belonging to a client and her minor children. The order suspended respondent from practice for a period of 121 days. The respondent has appealed, contending that the record does not justify his suspension. I The respondent represented Bonnie Beach and her minor children in connection with an automobile accident. A settlement was reached with the adverse party as a result of which $9,350, less the respondent’s fee, was awarded to the children. The judgment provided that Ms. Beach would hold the money as next friend for the children until ap pointment of a general guardian. Ms. Beach entered into an oral agreement with Mr. McWhorter under which he was to retain the funds for the purposes of investment to assure that when the children reached age 18 they would receive a good return on the money. Ms. Beach became dissatisfied with the respondent’s ability to document the existence and whereabouts of the money. She filed a request for investigation with the State Bar Grievance Board on August 18, 1975. After receiving notice of the board’s investigation, the respondent returned an amount of money to Ms. Beach in October of 1975 that was approximately 50% greater than the amount he originally agreed to invest. It appears that the respondent replaced this money with his own funds. On December 21, 1975, Ms. Beach signed an affidavit requesting that the board not proceed further with its investigation. She persisted in that request in her testimony before the hearing panel on June 13, 1977. The hearing panel’s findings with regard to the charged misconduct were as follows: "3. That the said hearing panel * * * finds that the respondent did not handle the trust funds with honesty, fidelity and good faith and that as an attorney he should have known that the funds referred to in said paragraph should have been placed either with a guardian or other fiduciary appointed by a proper court and thereafter handled fully in accord with statutes pertaining to the investment of minors’ funds. "4. The panel further finds that proper books of account and records concerning the administration of the trust funds were not kept by the respondent. "5. That the respondent failed to disclose or to account to Bonnie Beach any information concerning the investments, the location, or the administration thereof, and that he failed to preserve the identity of the separate trust funds for the children of Mrs. Beach. "6. That the respondent breached the duties which he had as a trustee of the Beach funds in that he failed to preserve the identity of the separate trust funds under his control, and further failed to maintain complete records of trust funds in his possession for the benefit of Bonnie Beach and for the benefit of the minor children. Further, that he failed to render accountings concerning the trust funds although requested by the said Bonnie Beach.” The panel concluded that these actions constituted violations of Code of Professional Responsibility, DR 1-102(A)(6) and DR 9-102(B), subds (2), (3), and (4). II The respondent contends that DR 9-102(B)(2) is inapplicable because there was no specific property which he should have stored in a place of safekeeping. He argues that DR 9-102(B)(4) was not. violated because his client never asked him to pay over the funds. The respondent maintains that the agreement that he had with Ms. Beach did not require him to keep records or give accountings of the funds involved. Thus, he believes that DR 9- 102(B)(3) is not applicable. Finally, he argues that the record does not reveal conduct on his part adversely reflecting on his fitness to practice law because his conduct was appropriate given the agreement with his client and the relationship between them. He points to his payment of an appropriate amount to his client and her apparent satisfaction, as evidenced by her request that the grievance proceeding be discontinued and his continued representation of her in other legal matters. Ill We do not reach the question of whether the evidence supports the findings of misconduct by the respondent. We regard the request by the aggrieved client for discontinuance of the proceedings as dispositive. There are situations in which the withdrawal of a request for investigation need not be honored by the board. Cf. State Bar Grievance Administrator v Jackson, 390 Mich 147, 152; 211 NW2d 38 (1973). In the circumstances of this case, however, we believe that the withdrawal request should have been honored. The withdrawal came early in the investigation. The respondent’s conduct was not of the egregious kind that requires continued proceedings for the protection of the public even in the absence of a continued interest by the aggrieved party. Finally, the client’s withdrawal of the request for investigation several months after the return of the money, her persistence in her desire to stop the proceedings 18 months later at the hearing, and her continued attorney-client relationship with respondent lead us to conclude that the board should have discontinued its investigation. Accordingly, we reverse the order of the State Bar Grievance Board and dismiss the complaint against the respondent. Kavanagh, Williams, Levin, and Fitzgerald, JJ., concurred. "A lawyer shall not * * * [ejngage in any other conduct that adversely reflects on his fitness to practice law.” "(B) A lawyer shall: "(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon a practicable. "(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them. "(4) Promptly pay or deliver to the client as requested by a client the funds, securities and other properties in the possession of the lawyer which the client is entitled to receive.”

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Williams, J. The sole issue on which this Court granted leave to appeal is whether a voluntary dismissal with prejudice of a prior suit which failed to state a cause of action under state law precludes, under the doctrine of res judicata and/ or GCR 1963, 203.1, a plaintiff from bringing a second suit based on an alleged violation of the Federal Truth-in-Lending Act. We find that plaintiff is not so precluded. I. Facts In 1972, plaintiff deeded her home to Louis Tibolla as security in connection with an agree ment by Tibolla to repair plaintiffs home after a fire. The conveyance itself was intended as a down payment of $5,500 on the total cost of repairs said to be $17,100. The balance of the amount due for the repairs was to be paid by plaintiff under a land contract to repurchase. The land contract had a clause authorizing Tibplla to mortgage the premises. In September, 1972, Tibolla granted a mortgage to defendant Colonial Federal Savings and Loan Association of Grosse Pointe Woods (hereinafter Colonial), gave a personal note as well as a security interest in the property, and received from Colonial $15,000. Later in 1972 plaintiff filed her initial lawsuit against Tibolla alleging that he had breached his contract of repair, committed fraud, used secondhand materials, made shoddy repairs and failéd to apply half the proceeds of the land contract to pay off the mortgage. By amended complaint, plaintiff joined Colonial as a party and sought rescission of the mortgage , between Tibolla and Colonial. Colonial denied that it was a party to any wrongful conduct and, at pretrial conference, January 8, 1975, plaintiffs attorney in the first case agreed to a dismissal of Colonial with prejudice. At the same time a default judgment was entered against Tibolla for the full amount of plaintiffs claim, $17,100, together with costs, interest and attorney’s fees. Nine days later plaintiff filed the instant suit against Colonial, seeking rescission of the mortgage based on a claim that violation of the Federal Truth-in-Lending Act, 15 USC 1635, gave plaintiff a right to rescission. Colonial moved for and received an accelerated judgment on the basis of res judicata and election of remedies. Appeal was taken by plaintiff to the Court of Appeals which affirmed by memorandum opinion of June 22, 1976. Plaintiff filed an application for leave to appeal to this Court and leave was granted March 7, 1977. II. Res Judicata Res judicata is a manifestation of the recognition that endless litigation leads to vexation, confusion and chaos for the litigants, and inefficient use of judicial time. See generally 46 Am Jur 2d, Judgments, § 395, p 559. The scope of res judicata has been framed in this jurisdiction in two distinct manners, one of which is literal and narrow and the other of which is broad. The former literal statement of the rule appears in the case of Clements v Constantine, 344 Mich 446; 73 NW2d 889 (1955). In that case the scope of the doctrine was set forth as follows: " 'The first essential of the rule of res judicata is the identity of the matter in issue. The "matter in issue” is defined to be "that matter upon which the plaintiff proceeds by his action, and which the defendant controverts by his pleadings.” See Chand, Res Judicata, p 35. If the same subject matter comes in question in. a second action in a court of last resort, it is bound by its own former decision. Bigelow on Estoppel (1st ed), p 16. " ' "A matter or question, either of law or fact, is res judicata, or set at rest, as to adverse parties and their respective privies, if it was a material issue in the proceeding, directly involved, and not merely incidentally cognizable nor collaterally in question, and was adjudicated after a contest, by a final judgment on the merits1 Van Fleet, Res Judicata, p 2.’” Clements, supra, 453-454. (Emphasis added.) Literally res judicata means "[a] matter adjudged” and is further defined by Black’s Law Dictionary (4th ed) as a "[rjule that final judgment or decree on merits * * * is conclusive of rights of parties or their privies in all later suits on points and matters determined in former suit” (emphasis added). What clearly stands out in these definitions is that issues not litigated in a former suit are not res judicata. However, the rule has also been framed more broadly. An example of this more inclusive statement of the doctrine can be found in three cases which deal with the res judicata of prior consent judgments, Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965); Shank v Castle, 357 Mich 290, 295; 98 NW2d 579 (1959); Prawdzik v Heidema Brothers, Inc, 352 Mich 102; 89 NW2d 523 (1958). In Gursten the rule was stated in dicta as follows, " ' "The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” ’ ” Gursten, p 335. (Emphasis added.) Whatever the correct scope of the rule, its main purpose is to insure finality in a cause of action. Plaintiff asserts that the cause of action she presently sues upon is different, separate and distinct from that in the prior suit, thereby precluding application of res judicata, and even if this were not the case, her second suit is saved by virtue of the waiver provision of GCR 203.1. Because we find this case controlled by GCR 203.1, and because there was no objection as discussed in the last sentence of that rule, we need not decide whether plaintiff’s second suit should have been part of her first suit under Michigan’s rather broad definition of "cause of action”, or the broad definition of res judicata. GCR 203.1 reads as follows: "A complaint shall state as a claim every claim either legal or equitable which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Failure by motion or at the pretrial conference to object to improper joinder of claims or to a failure to join claims required to be joined constitutes a waiver of the required joinder rules and the judgment shall not merge more than the claims actually litigated.” (Emphasis added.) The first sentence of the above court rule codifies Michigan’s longstanding decisional rule against splitting a cause of action. That decisional rule is grounded on the same general policy considerations as the doctrine of res judicata and, to the extent the rule encompasses or mitigates res judicata, it must control. III. GCR 203.1 In examining the instant case under GCR 203.1, the matter which must be decided by this Court is the impact, if any, of the waiver provision found in the second sentence of the rule. A Court of Ap peals opinion which previously considered the rule is instructive. In Malesev v Garavaglia, 12 Mich App 282; 162 NW2d 844 (1968), Justice Thomas Giles Kavanagh, then Presiding Judge of the Court of Appeals, was faced with a case similar to the instant one. Plaintiffs had initially brought a tort action to recover property damage suffered during defendants’ construction of a drain water intake system pursuant to a contract with the Wayne County Board of Road Commissioners. Defendants were awarded an accelerated judgment based on plaintiffs’ failure to comply with the three-year statute of limitations governing personal injury or property damage claims. Less than two months later the plaintiffs brought a second, separate action against the same defendants claiming they were third-party beneficiaries under the contract between the road commission and defendants and that defendants had breached that contract. Unlike their initial suit, plaintiffs’ second suit sounding in contract was subject to a six-year rather than three-year statute of limitations. Defendants were granted an accelerated judgment in the second suit based on res judicafa, On appeal, then Presiding Judge Kavanagh correctly found the application of res judicata to be erroneous, given the circumstance that plaintiffs had not received an adjudication on the merits of any portion of their claim. Further, in light of GCR 203.1, he found that plaintiffs’ second suit was not barred despite the fact that they should properly have joined a separate claim for breach of contract in conjunction with the original suit. This was so because "defendant made no objection at that time for failure to join all actions, consequently nothing bars the bringing of [plaintiffs’] separate action now. (GCR 1963, 203.1)”. Malesev, supra, 285. See also Roberts v Duddles, 47 Mich App 601, 604; 209 NW2d 720 (1973). We find that the rule was interpreted and applied in the only logical manner by then Presiding Judge Kavanagh in Malesev. As quoted above, the language of the rule specifically states that "failure * * * to object * * * to a failure to join claims required to be joined constitutes a waiver of the required joinder rules”. This language is clear. Its obvious impact is that waiver by the defendant precludes later assertion of the waived defense during a subsequent suit. While at first glance the court rule’s waiver provision may appear to create a vast change in this area of law, we note that further reflection persuades us otherwise. The defenses of merger and bar have always been waivable by a defendant. The only innovative aspect of the rule’s waiver provision is that a defendant must now assert his or her objection during the first suit when there exists an opportunity for plaintiff to cure the nonjoinder defect. In substance, the harshness of the prior rule is merely mitigated by the new requirement of timely motion. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes, Rule 203, p 472 and Authors’ Comments, pp 474-475 to Rule 203. IV. "Merger”/”Bar” and GCR 203.1 Justice Ryan’s opinion, in its interpretation of the instant case, would limit the scope of GCR 203.1 to cases falling within the technical limits of "merger”, on the ground that the rule makes specific reference to "merger” without similar specific reference to "bar”. Under such an interpretation, if a plaintiff had won a prior suit during which a defendant had failed to object to plaintiff’s nonjoinder, GCR 203.1 would operate to allow the maintenance of a second suit because the defense of "merger” would have been waived. If a plaintiff had lost the prior suit, as occurred herein, however, under Justice Ryan’s interpretation GCR 203.1 would be inapplicable despite a defendant’s similar failure to object. This inconsistent result would obtain because a defendant could waive assertion of the defense of "merger” but could not waive assertion of the defense of "bar” under his reading of the rule, although in fact both actions were almost identical. We cannot agree that the rule can be interpreted in this manner for a number of reasons. First, Justice Ryan’s interpretation would mean that Malesev, which we believe correctly interpreted and applied GCR 203.1, was incorrectly decided. In Malesev, the plaintiff was unsuccessful in his first suit, but then Judge Kavanagh found that plaintiff could maintain a second suit because the waiver provision of GCR 203.1 precluded defendant’s assertion of bar. Second, we note that the concepts of merger and bar are almost identical despite their technical distinction. In fact the terms "merger” and "bar” are often used interchangeably to convey the same meaning. In specific reference to the waiver provision of GCR 203.1, an example of this interchangeability in common usage can be found in Wayne Circuit Judge Horace W. Gilmore’s oft-cited treatise, Michigan Civil Procedure Before Trial. The treatise states in § 8.103, "failure * * * to object to * * * failure to join claims required to be joined, constitutes a waiver of the required joinder, and the judgment does not merge more than the claims actually litigated.” (Emphasis added.) In the very next section, § 8.104, the treatise states, "[a]s pointed out in the previous section, §8.103, failure to object to the nonjoinder of mandatory claims means that the action does not bar a subsequent suit on that unjoined claim.” (Emphasis added.) The fact that the terms are frequently not distinguished in common usage is further demonstrated by the fact that this limited interpretation of the waiver provision solely to those cases falling within the technical definition of merger has not arisen in prior Court of Appeals cases examining GCR 203.1. Third, even if merger is given its technical meaning, we do not find the language discussing merger to control that which precedes it. The second sentence of GCR 203.1 contains two clauses. The first states, "failure * * * to object * * * constitutes a waiver of the required joinder rules”. This clause unequivocally waives all joinders, whether plaintiff won or lost. So the technical difference between "merger” and "bar” does not come into play at all. We hold this clause is absolute and controlling. The second clause states "* * * and the judgment shall not merge more than the claims actually litigated”. We find the language in the second clause subordinate to the language contained in the first clause and hold that the term "merge” in the second clause is used in its more general sense. Waiver of the joinder rules necessarily includes waiver of the defense of "bar”. This reasoning is substantiated by the Committee Notes discussing the "harshness” the waiver provision is meant to mitigate: "[t]he harshness of the present practice as it relates to the enforcement of compulsory joinder provisions * * * is the fact it almost always is enforced after the fact, through the doctrine of merger and res judicata” (emphasis added). Res judicata includes both the doctrines of merger and bar. James, Civil Procedure (Little, Brown & Company, 1965), p 549. Further, and perhaps of greatest significance, to apply the GCR 203.1 waiver provision solely to merger and not to bar does not make sense in light of a primary purpose of the waiver provision. That purpose is to encourage a defendant to assert, by motion, an objection to plaintiff’s nonjoinder in the first suit when the defect can be cured. At this point it could not be known whether plaintiff would win or lose. The introduction of fairness and certainty into this area of litigation is the obvious beneficial impact intended by the rule in requiring assertion in the first suit. For example, if a plaintiff initially fails to join all claims and there is no objection made by defendant to this defect, then all parties are on express notice that plaintiff may later institute suit on matters not actually litigated therein. Conversely, if plaintiff fails to join all claims and defendant does object, all parties know that plaintiff will be precluded from suing again absent an amendment in plaintiff’s complaint joining those additional claims. Hence, as stated in the Committee Notes and Authors’ Comments, the unfairness or harshness of the joinder rule is mitigated by bringing the matter to the fore in the original suit when the nonjoinder defect can be cured. Clearly, if the waiver provision were solely applied to cases which, once litigated, come within the technical definition of "merger”, there could be no certainty until plaintiff’s success was determined; that very certainty sought to be realized by the rule during the original suit would be frustrated. We cannot and do not find that this rule drafted to effectuate fairness and certainty during an original action, can be interpreted to render the matter uncertain until after finality of the original action. Finally, the unreasonableness of interpreting the waiver provision as restricted only to cases falling within the technical definition of "merger” is further supported by the fact that we cannot logically find that the provision was intended to avoid harshness only with respect to the successful plaintiff. If a choice had been undertaken by the rule — and we do not find that one was — it would appear to us far more logical to assist the plaintiff suffering most significantly by the harshness of the traditional compulsory joinder requirement, i.e., the plaintiff who has been unsuccessful and therefore recovered nothing from the defendant as a result of the original suit. For the above reasons we cannot conclude that the GCR 203.1 waiver provision applies only to cases falling within the technical scope of merger and therefore only in favor of previously successful plaintiffs. We find the waiver provision to mean what it says — a defendant who fails to object to a plaintiffs nonjoinder waives the use of the defense in a subsequent suit based on additional claims. V. Conclusion Consistent with the purpose and language of the rule, we find that defendant has waived the right to preclude the instant suit as a result of its failure to make timely objection in the original suit. Accordingly, we reverse and remand for trial on plaintiffs Federal Truth-in-Lending claim. Costs to appellant. Levin and Blair Moody, Jr., JJ., concurred with Williams, J. The Federal statute affords a right to rescind security transactions involving real estate and places an affirmative duty to disclose on the creditor. The act reads in part: "Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest ** * * is * * * retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.” Factually, the matter attempted to be raised in the second trial in Gursten had been raised and pursued by the litigants in the first trial so the consent judgment would have been res judicata under either the narrow or broad statement of the rule, and the holding of the case was that plaintiff "elected to pursue the matter before the referee in bankruptcy [in the first case]. Having made that choice, he was under obligation to pursue it [by appeal] or abide by an adverse result”, Gursten, p 335. Despite this, the Court attempted to deal with the inconsistency of the two above statements of the rule by distinguishing three older cases which had employed the narrower doctrine of res judicata (Detroit Trust Co v Furbeck, 324 Mich 401; 37 NW2d 151 [1949]; Meister v Dillon, 324 Mich 389; 37 NW2d 146 [1949]; MacKenzie v Union Guardian Trust Co, 262 Mich 563; 247 NW 914 [1933]). The Gursten opinion distinguished the three older cases by finding that the matters raised in the second suits in those cases did not properly belong in the original suits or did not have to be raised at the time of the original suits and went on to find the broader rule preferred. See 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Authors’ Comments, Rule 203, p 474, citing the Committee Comments to that Rule 203.1 and 1 Michigan Law & Practice, Action §§ 22-25, pp 132-140. GCR 203.1 has no impact on the narrow rule of res judicata, i.e., matters actually litigated. See 1 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 203, Authors’ Comments, p 476 in which it is stated "* * * sub-rule 203.1 modifies * * * res judicata, by providing that omitted claims relating to the original cause of action may be asserted later, if there was no objection to the failure to join them in the first action. "The rule has no effect, however, on the application of res judicata to the claims actually litigated in the original action.” (Emphasis added.) Of additional interest is the fact that, as stated in the Committee Notes to the rule, it is meant to have no impact on the doctrine of collateral estoppel. 1 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 203, Committee Notes, p 473. An accelerated judgment based on the three-year statute of limitations is not an adjudication on the merits of a cause of action. See Nordman v Earle Equipment Co, 352 Mich 342; 89 NW2d 594 (1958). In Purification Systems, Inc v The Mastan Co, Inc, 40 Mich App 308; 198 NW2d 807 (1972), another panel of the Court of Appeals discussed the waiver provision of GCR 203.1. The Court of Appeals affirmed a trial court’s holding based on res judicata because it found that the facts to be proven in a second suit were the same as those litigated in the first. That court went on to discuss GCR 203.1 and noted that defendant had not made an objection under the rule. In apparent dicta, the panel adopted a balancing approach to application of the rule. We disagree with the Court of Appeals findings in Purification Systems as to both res judicata and GCR 203.1, and that case is hereby overruled. See criticism of the case in 57 Mich St Bar J 842-843 (Oct, 1978). Colonial argues in this Court that, "[t]he proper interpretation of GCR 1963, 203.1 is that claims omitted from the original suit may be asserted later if there was no objection to the failure to join them in the first action and if they do not arise out of the same transaction or occurrence involved in the first action” (emphasis in original). The plain language of GCR 203.1 requires joinder of "every claim * * * if n arises out of the transaction or occurrence that is the subject-matter of the action” (emphasis added). In other words, it is a compulsory joinder provision for claims arising out of the same transaction. The second sentence containing the waiver provision requires objection to failure to join that which should be joined under the rule, i.e., matters arising out of the same transaction or occurrence. Colonial’s contention is contrary to the very language of the rule. Technically, merger occurs only when a prior judgment has been rendered in favor of a plaintiff; plaintiff's cause of action is merged if he or she wins. Bar, on the other hand, technically occurs when the plaintiff has been unsuccessful in the prior action; plaintiff’s cause of action is barred if he or she lost. Under either doctrine, of course, plaintiff could not maintain a second suit based on the same cause of action. This is not to say that it is incorrect to usually interpret language employed in a statute or court rule under its technical meaning. Within the context of GCR 203.1, we find such a restrictive reading to be inappropriate. This common interchangeable usage is further demonstrated by the fact that following the above quotation in the Gilmore Treatise, a hypothetical factual situation is inserted to illustrate the impact of the waiver provision as it would affect two separate suits. The hypothetical does not indicate whether plaintiff was successful or unsuccessful in the first suit, but does indicate that the second suit is authorized because of defendant’s failure to object during the first suit. While litigants normally assert any plausible (and some not so plausible) arguments beneficial to their case, this limited interpretation has also not been raised by the parties herein. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes, Rule 203, p 472, states, "Sub-rule 203.1 deals only with compulsory joinder of claims between those already parties to the action. "The strictness of the compulsory joinder provision of sub-rule 203.1 and its all inclusive character is mitigated in a sensible way by its last sentence and by the provisions of Rule 301 requiring the pre-trial conference judge to inquire as to whether or not all claims required to be joined are joined. The harshness of the present practice as it relates to the enforcement of compulsory joinder provisions (this is sometimes referred to as the rule against splitting causes of actions) is the fact it almost always is enforced after the fact, through the doctrine of merger or res judicata. In other words, at the present time the question of whether or not all of a cause of action has been sued upon is seldom, if ever, challenged in the original suit when the defect might have been corrected. Normally, the challenge comes in a response to another suit alleging splitting or merger. At this late stage of the proceedings, no matter how innocent the parties were, there is no way to correct the matter and the party loses his chance to litigate the rest of his claim." (Emphasis added.) The Authors’ Comments at p 475 states, "An unfortunate aspect of the rule against splitting a cause of action was that it was almost always enforced after the fact. The question of whether all required matters had been joined was seldom raised in connection with the first action, when something could have been done about it. Rather, it was raised as a defense of res judicata to a second action attempting to present the related but previously unlitigated matters, and the penalty was that matters which should have been joined before were now forever lost.” The defendant, aware that all claims had not been joined (whether the failure to join by plaintiff was intentional, or more likely a result of ignorance or mistake as probably occurred in the instant case) would be encouraged to engage in guesswork as to the likelihood of plaintiffs success on the limited points raised in the first suit, rather than being encouraged to make the objection as soon as he or she was aware of plaintiffs nonjoinder.

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Coleman, C.J. (to affirm). The defendant appeals his conviction of first-degree murder. The question presented is whether voluntary statements made by the defendant to a detective and an assistant prosecuting attorney after knowingly and understandingly waiving his right to an attorney and his right to remain silent must nonetheless be suppressed if the assistant prosecuting attorney violated Disciplinary Rule 7-104(A)(l) of the legal profession’s Code of Professional Responsibility, which states: "During the course of his representation of a client a lawyer shall not: "(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law tp do so.” The Court of Appeals ruled, one judge dissenting, that an ethics violation alone does not warrant or require the suppression of voluntary statements. 74 Mich App 351; 253 NW2d 763 (1977). We affirm. I On October 19, 1974 at approximately 8:30 p.m., the victim left her home and drove to a nearby market to purchase some milk. She took her six-month-old child with her. Patrons of the market and a cashier saw her in the market with her child just before closing at approximately 8:45 p.m. Her husband awoke from a nap at approximately 11:45 p.m. and became worried when he discovered that she was not yet home. He telephoned a relative and together they began looking for her. At approximately 12:30 a.m., they found her car in the market parking lot with the keys in it and the child asleep on the front seat. After a futile search of the surrounding area, they drove the car home and telephoned the police. The victim’s whereabouts remained unknown until the late afternoon of October 21 when some hunters found her body floating in a nearby river. An autopsy performed the next day revealed that she had been stabbed once in the back and once in the chest. The chest wound was near the sternum. It penetrated through some soft tissue between the fourth and fifth ribs and continued through the front and back walls of the victim’s heart. The back wound penetrated through both walls of the victim’s left lung. The cause of death was shock and hemorrhaging. On October 23 a citizen spoke to the police and implicated the defendant in the murder. A police officer visited the man at his home and, while the officer listened on an extension, the man telephoned the defendant and expressed concern about the possibility of fingerprints or other incriminating evidence. The defendant said not to worry about these things. On October 24 the police arrested the defendant and booked him for murder. The detective in charge of the case then drove the defendant to the area where the victim’s body had been found and advised the defendant of his Miranda rights by reading from a card that said: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering these questions. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions if you wish one. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” On the back of the card were these questions: "Do you understand each of these rights I have explained to you? Do you want to talk to a lawyer before any questions? Will you waive your right to remain silent and answer any questions we may ask you?” The defendant indicated that he understood his rights and would waive them. He then denied having any knowledge of the murder. On October 28 the defendant sent a message to the detective asking to speak with him. The defendant complained that the guards at the jail were harassing him. That afternoon the detective visited the defendant at the jail. After hearing his Miranda rights and again waiving them, the defendant proffered a statement concerning his supposed whereabouts on the night of the crime and again denied having any knowledge of the murder. At the end of this discussion the detective asked the defendant if he was telling the truth and the defendant said that he was. On October 31 counsel was appointed to represent the defendant. On November 19 the man who originally implicated the defendant in the murder testified against the defendant at the preliminary examination. He had been the defendant’s homosexual lover until the day of the arrest. According to this witness, the defendant arrived at the home of a mutual acquaintance between 9 p.m. and 10 p.m. on October 19, 1974. At approximately 11 p.m. they all decided to go to a party in Detroit. As they entered the defendant’s car, the defendant asked the acquaintance to hand him the coat lying on the back seat because "there’s something in there that probably would be dangerous to him”. After they returned from Detroit, the acquaintance was taken home. The defendant then said that he had something to tell the witness and that the witness could not tell anyone else about it. The defendant reached underneath the front seat of his car, pulled out a large knife and said that he "had just killed his old lady”. When the witness expressed disbelief, the defendant said, "I’m serious” and proceeded to detail the circumstances of the crime. He said he stabbed her in the chest and "it went in easy”. (To illustrate the location of the wound, he put the point of the knife on the chest of the witness near the witness’s sternum.) He also said he left her keys and her sleeping child in her car and had dumped her body in the water near the area where the body eventually was found. When the witness continued to express disbelief, the defendant pointed to what he said was a bloodstain on the knife. Shortly after this conversation, at approximately 4 a.m. on October 20, the defendant and the witness entered another car with some friends who were taking one of the passengers home. On the way to that residence, the defendant asked the driver to take a slight detour. The detour led past the market where the victim’s car had been found. The defendant said that he wanted to "check out something”. As they drove past the market, the defendant said, "It’s gone.” Primarily on the basis of this testimony, the defendant was bound over for trial on an open charge of murder. Sometime during the middle of November, the defendant again sent word to the detective, asking to speak with him. The detective and the assistant prosecuting attorney assigned to the case visited the defendant at the jail. However, when the detective advised the defendant of his Miranda rights, the defendant indicated that he wanted to speak with his attorney before talking further about the case. The discussion ceased immediately at that point. Near the end of January, 1975, the defendant again sent word to the authorities expressing a desire to talk. On January 29 the detective and the assistant prosecuting attorney spoke with each other and then visited the defendant at the jail. They did not communicate with the defendant’s attorney. The detective advised the defendant of his Miranda rights. The defendant waived his rights and said that he wanted to talk to the authorities without his attorney present. The detective asked about the murder and the defendant proceeded to tell an exculpatory story about driving to a store on the night of the crime to purchase some wine and meeting a man who revealed a large knife and said something about "killing this bitch”. The defendant said he gave this man a ride to a bar and later discovered that the man had managed to slip the knife underneath the defendant’s coat in the back seat of the defendant’s car. The defendant said he threw the knife in some bushes next to a restaurant parking lot in Detroit. He refused to identify the man. At the end of this story, the assistant prosecuting attorney, who, up to that point, had only been taking notes, asked the defendant if he was telling the whole truth. The defendant said that he was. Prior to trial an evidentiary hearing was held to determine the admissibility of the defendant’s statements. After testimony was taken, defense counsel objected to the admission of the January 29 statements on the ground that the defendant had not been advised prior to making the statements that the penalty for first-degree murder was mandatory life. In passing, defense counsel added: "I just think for an assistant prosecuting attorney and Detective Blum to interrogate Ernest Green and not advise him of that or even volunteer to invite me to the jail, I don’t think that the admissions made on January 29, 1975 should be admissible.” The trial judge overruled the objection and the statements were ultimately admitted into evidence at trial. The jury convicted the defendant of first-degree premeditated murder. II On appeal the defendant has not argued that his statements were involuntary or that the authorities failed to comply with the Miranda requirements. Instead he contends that the statements should have been suppressed because the assistant prosecuting attorney violated DR 7-104(A)(l). Alternatively he contends that the statements should have been suppressed because the assistant prosecuting attorney’s conduct was so fundamentally unfair and shocking to the sensibilities of reasonable persons that it violated general notions of due process of law. The state responds that there was no violation of DR 7-104(A)(l) in this case because the defendant initiated the January 29 discussion, waived his right to counsel and indicated that he wanted to •talk to the authorities without his attorney present. Further, the state argues that the assistant prosecuting attorney played only a minor role in the discussion, listening to the defendant and taking notes, and that there was no overreaching of any kind. Alternatively the state contends that the exclusionary rule does not apply to violations of the Code of Professional Responsibility. The proper action is disciplinary proceedings against the offending attorney. Finally, the state argues that if the admission of the defendant’s statements at trial was error, it was harmless. Ill The threshold question is whether the assistant prosecuting attorney violated DR 7-104(A)(l). The Court of Appeals unanimously concluded that the assistant prosecuting attorney had acted improperly. The state has conceded in its brief that prosecuting attorneys are not exempt from the strictures of DR 7-104(A)(l). The state argues, however, that no violation of DR 7-104(A)(l) occurred in this case because of the defendant’s intention to speak with the authorities without his attorney present and because of the lack of overreaching by the assistant. prosecuting attorney. The argument that the defendant’s request to speak out of the presence of his attorney obviates the necessity of notifying the defendant’s attorney and obtaining his or her consent is contrary to opinions by both the American Bar Association and Michigan State Bar Association Committees on Professional Ethics. In ABA Formal Opinion 108 issued in 1934, the Committee was asked to interpret the forerunner of DR 7-104(A)(l), old Canon 9, which stated: "A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.” The question before the committee was whether the plaintiffs attorney in a civil case could ethically interview the defendant in the absence of the defendant’s attorney if the defendant was willing to discuss the case. The committee unanimously answered in the negative and, after quoting Canon 9, stated: "The reasons for such a prohibition are equally clear. They arise out of the nature of the relation of attorney and client and are equally imperative in the right and interest of the adverse party and of his attorney. To preserve the proper functioning of the legal profession as well as to shield the adverse party from improper approaches the Canon is wise and beneficent and\ should be obeyed.” In Michigan State Bar Opinion 202, issued in 1965 and approved by the State Bar Board of Commissioners in 1966, the committee was faced with the question whether Canon 9 prohibited a prosecuting attorney from interviewing a criminal defendant without first obtaining the consent of the defendant’s attorney even if the defendant requested the interview without informing his or her attorney. The committee unanimously answered in the negative. The quotation from ABA Formal Opinion 108 set forth above indicates that there is more to this ethical prohibition than just the prevention of overreaching. The rights and interests of the adverse party’s attorney and the proper functioning of the legal system are involved as well. Ethical Consideration 7-18, adopted by the American Bar Association in 1975, emphasizes the importance of this ethical prohibition to the functioning of the legal system: "The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.” (Footnote omitted.) Other authorities have not exempted prosecuting attorneys from the strictures of DR 7-104(A)(l) in fact situations where the defendant requested an interview or was willing to speak and where there was no overreaching. The language of DR 7-104(A)(l) is clear and contains only two exceptions. It says "a lawyer shall not * * * communicate * * * with a party he knows to be represented by a lawyer * * * unless he has the prior consent of the lawyer representing [that] party or is authorized by law to do so”. (Emphasis added.) The state has not presented any reasons for a distinction between civil and criminal cases based on the defendant’s willingness to speak and the lack of overreaching. Nor has the state addressed the concerns in addition to the prevention of overreaching expressed in the ethics opinions noted above. We hold that while this defendant’s initiative and willingness to speak and the lack of overreaching by the assistant prosecuting attorney are factors to be considered in mitigation, they do not excuse compliance with the standard of professional conduct prescribed by DR 7-104(A)(l). IV Our resolution of the question above brings us to the principal dispute in this appeal — whether the voluntary statements made by the defendant after knowingly and understandingly waiving his Miranda rights must nonetheless be suppressed solely because the assistant prosecuting attorney violated DR 7-104(A)(l). The Court of Appeals majority held that an ethics violation standing alone does not warrant or require the suppression of evidence. The defendant has argued that the violation of DR 7-104(A)(l) was a violation of his rights and that unless his statments are suppressed, he will have no effective remedy to redress the wrong done to him. This argument rests upon a basic misconception of the Code of Professional Responsibility. The provisions of the code are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar. Although it is true that the principal purpose of many provisions is the protection of the public, the remedy for a violation has traditionally been internal bar disciplinary action against the offending attorney. The sanctions available are by no means trivial. The attorney faces permanent disbarment. In these respects the provisions of the code are no different from the provisions found in the codes of conduct for other professions, such as medicine or architecture. They are all self-governing, in-house regulations. The admissibility of evidence in a court of law, on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions. New courts have mixed the standard of conduct found in DR 7-104(A)(1) or any other provision of a code of professional responsibility into questions concerning the admissibility of evidence in criminal or civil cases. Even the courts which have embraced this novel concept have linked their decisions to do so with constitutional doctrines or statutory provisions not recognized or present in Michigan’s jurisprudence. See, for example, People v Hobson, 39 NY2d 479; 348 NE2d 894; 384 NYS2d 419 (1976). The defendant also has argued that if his statements are not suppressed this Court would in effect give its stamp of approval to unethical conduct. As this opinion clearly indicates in part III above, such a conclusion is unsupported. To the contrary, part III reflects a commitment by the Court to insure that future violations do not occur. The facts in the case at bar provide a good example why a violation of DR 7-104(A)(l) standing alone should be dealt with by bar disciplinary action rather than by withholding relevant and material evidence from the jury. The defendant had a story he wanted to tell to the authorities, presumably to clear himself of the murder charge lodged against him. He sent word to the authorities and asked to speak with them. He waived his Miranda rights with full knowledge of what he was doing. He specifically stated that he wanted to talk without his attorney present. The assistant prosecuting attorney and the detective did little except listen to what the defendant had to say and take notes. The defendant’s state ments were completely voluntary and there was no overreaching of any kind. When asked if he was telling the whole truth, defendant said that he was. Reversal of the conviction and grant óf a new trial (if in fact the witnesses and evidence presented in 1975 could be obtained for a second trial) solely because of this less than consequential violation of DR 7-104(A)(l) would constitute reprehensible "overkill”. In cases such as this, bar disciplinary action directed against the offending attorney would be a more appropriate response and would serve as a more effective deterrent than the indirect sanction of the exclusionary rule. Although the presence of a prosecuting attorney is still one factor to be considered in assessing the "totality of the circumstances” in order to determine whether a defendant’s statements are constitutionally admissible, we find no unconstitutional intrusion in this factual situation. This resolution makes it unnecessary to consider the state’s argument that if admission of the defendant’s statements at trial was error, it was harmless. V The final question is whether the assistant prosecuting attorney’s conduct was so fundamentally unfair and shocking to the sensibilities of reasonable persons that it rises to the level of a violation of due process of law. We find that it does not. As noted above, the assistant prosecuting attorney’s conduct, although a violation of DR 7-104(A)(1), was relatively innocuous. It pales in comparison to the cases in which a due process violation has been found. See, for example, Rochin v California, 342 US 165; 72 S Ct 205; 96 L Ed 183 (1952). This is not a case in which the authorities used deception or force to extract a confession from an ignorant and helpless defendant. (Compare Brewer v Williams, 430 US 387; 97 S Ct 1232; 51 L Ed 2d 424 [1977], dealing with the right to counsel.) At most they acquiesced in a course of conduct initiated by a defendant who knew precisely what he was doing after they offered him the right to have counsel present and after that right was refused. We do not find this so unfair or so shocking that the defendant’s conviction must be reversed. We affirm. Ryan, J., concurred with Coleman, C.J. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Trial transcript, pp 15-16 Id., pp 16-17. At the Walker hearing before trial the detective testified: "Q. [by the prosecutor]: Now, did you have occasion to interview him [the defendant] at any time after that? "A. Yes, on January 29, 1975. "Q. And where did that take place? "A. At the Oakland County Jail. "Q. Who was present? "A. Yourself, myself and Mr. Green. ”Q. And how did you come to be over there? "A. Mr. Green had sent word from the jail through one of the deputies that he wished to talk to us.” Trial transcript, p 27. There is little testimony about the conversation between the detective and the assistant prosecuting attorney. The detective testified at trial: "Q. [by defense counsel]: Did you and [assistant prosecuting attorney] talk to each other before you interviewed Ernest Green on January 29, 1975? "A. About what, sir. ”Q. About anything, about the interview? "A. I presume we did, yes.” Trial transcript, p 423. At the Walker hearing the detective testified as follows, speaking in response to defense counsel’s questions: "He [the defendant] waived his rights including the lawyer, he waived, he told us that he wished to discuss this case with us without you.” Trial transcript, p 47. Trial transcript, p 48. Appellee’s brief, p 30. See also Michigan State Bar Committee on Professional Ethics Opinion 202, 46 Mich St Bar J, No 5, pp 29-30 (1967). American Bar Association Opinions of the Committee on Professional Ethics (1967), p 360. 46 Mich St Bar J, No 5, pp 29-30 (1967). ABA Code of Professional Responsibility (1975), pp 33C-34C. See, for example, United States v Carlson, 423 F2d 431, 442 (CA 9, 1970), cert den 400 US 847 (1970); United States v Four Star, 428 F2d 1406, 1407 (CA 9, 1970), cert den 400 US 947 (1970); United States v Springer, 460 F2d 1344, 1353-1354 (CA 7, 1972), cert den 409 US 873 (1972); and United States v Thomas, 474 F2d 110, 111-112 (CA 10, 1973), cert den 412 US 932 (1973). For a recent discussion of the purposes and intended effect of a Code of Professional Responsibility, see Informal Opinion 1420 issued by the American Bar Association Standing Committee on Ethics and Professional Responsibility, June 5, 1978. It appears in the ABA Journal of July 1978. 64 ABA J 1173 (1978).

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Per Curiam. Defendant pleaded guilty of two counts of delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401X2) (a)(iv), which were charged in two separate informations. In exchange, a third information charging the same offense was dismissed. For one conviction, defendant was sentenced to two to twenty years’ imprisonment. For the other conviction, defendant was sentenced to three to twenty years’ imprisonment, to be served consecutively to the other sentence. Defendant appeals these convictions and sentences as of right. We affirm. On appeal, defendant contends that his sentences are disproportionate to the circumstances of the crimes and his personal history. He asserts that his actions were those of a "purchaser” rather than a "dealer” and that the offenses should have been at the extreme low end of the scale of seriousness, particularly in view of the relatively small amounts of cocaine._ We note, as did defendant, that his sentences were within the guidelines recommendation of one to five years. These sentences are therefore presumptively valid. People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). Nevertheless, defendant contends that the sentences are disproportionate, particularly in light of the consecutive nature of his three- to twenty-year sentence. We disagree. In People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), our Supreme Court reaffirmed that proportionate sentences must take into account not only the seriousness of the offense but the individual characteristics of the defendant. In this case, while defendant may have provided only small amounts of cocaine to the undercover police officer, he did so on three occasions. The record indicates, however, that defendant’s efforts were on occasion aimed at acquiring larger amounts. Turning to defendant’s personal history, we note that he has four prior felony convictions, including one drug offense and two weapons offenses. Although there may have been mitigating circumstances, there is nothing in the record to suggest that the sentences violate the principle of proportionality. Furthermore, the cumulative nature of defendant’s sentences is irrelevant to the determination whether his sentences are excessive. People v Marshall Warner, 190 Mich App 734, 736; 476 NW2d 660 (1991). Under the circumstances, we are convinced that the trial court did not abuse its discretion in sentencing defendant within the guidelines. Next, defendant contends that the trial court erred in ordering his three- to twenty-year sentence to be served consecutively to his two- to twenty-year sentence. MCL 333.7401(3); MSA 14.15(7401)(3) provides in relevant part: A term of imprisonment imposed pursuant to subsection (2)(a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony. [Emphasis added.] On appeal, defendant argues that the phrase "another felony” should be interpreted to mean a different and distinct felony, not an additional felony under the same provision of the controlled substances act. Upon careful consideration we cannot agree with defendant’s interpretation of this provision. The plain meaning of the term "another” includes both "additional” and "different or distinct.” See, e.g., Black’s Law Dictionary, Special Deluxe Fifth Edition (1979). Therefore, "another felony” would include the commission of an additional felony violation of the same controlled substances provision, the commission of a different felony violation of the controlled substances act, or the violation of any other felony provision. Furthermore, this interpretation does not render MCL 768.7b; MSA 28.1030(2) meaningless. The two statutes address separate and distinct situations. Although imposition of consecutive sentences is mandated under MCL 768.7b; MSA 28.1030(2) when a defendant commits a felony while other felony proceedings are pending, MCL 333.7401(3); MSA 14.15(7401)(3) governs when a defendant commits certain controlled substance offenses and another felony, irrespective of pending felony charges. People v Mamon, 190 Mich App 124, 126; 475 NW2d 378 (1991). In his appellate briefs, defendant states that the trial court erred in denying his motion to dismiss the charges because of the delay in his arrest. Contrary to his assertions, the trial court’s ruling with regard to this issue is in the record. Never theless, defendant fails to argue the merits of this allegation of error in any of the three briefs filed by him in this appeal. Consequently, we deem the issue abandoned. City of Midland v Helger Construction Co, Inc, 157 Mich App 736, 745; 403 NW2d 218 (1987). As his last issue, defendant contends that the trial court erred in failing to find entrapment following an evidentiary hearing. In a lengthy opinion in which the then newly released People v Jamieson, 436 Mich 61; 461 NW2d 884 (1990), and its predecessors were analyzed, the trial court denied defendant’s motion to dismiss, finding that defendant had not been entrapped: The Court: . . . [W]hen you juxtapose those facts against what I have in this record — and the only indication by Officer Joyner is that on September 9 of 1989, she asked Mr. Kent if he knew where she could find some coke. He said to look in his pants pocket, but then said if she had the money, he could get it. She did have the money. She drove them there, and he entered Hugo’s bar and returned with one-and-a-quarter grams and gave her back the difference in cash of the $300 that she gave to him. She further testified that there was no date. There was no purchasing of drinks, no special kind of pressure or request or anything at all placed upon the Defendant by her. She testified that she saw the Defendant 15 or 20 times and only spent any time with him on three occasions and each of those three occasions were when the Defendant purchased drugs for her. Other than that, it was simply a waitress/bar/patron relationship. The Court: ... I don’t think the mere question by a waitress saying do you know where I can get some coke would ordinarily incite, if you will, or cause a reasonably law-abiding person to go ahead and violate the law, but I did consider [that risk discussed in footnote 19 of Jamieson], Mr. Jereck, when I read those statements. A trial court’s finding following an entrapment hearing will be upheld unless clearly erroneous. Jamieson, supra, p 93. Recently, in People v Fabiano, 192 Mich App 523; 482 NW2d 467 (1992), this Court discussed the effect of the Supreme Court’s decision in People v Juillet, 439 Mich 34; 475 NW2d 786 (1991), on the objective test for entrapment established in Jamieson. In a 2-1 decision, this Court concluded that the "nature” of the objective test had been changed. Fabiano, supra, p 526. The Court concluded that "four justices would find entrapment if (1) the police engaged in impermissible conduct that would have induced a person similarly situated to the defendant, though otherwise law-abiding, to commit the crime, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated by the Court.” Id. Although the Fabiano Court remanded that case to the trial court, we are convinced that such a result is not warranted on the facts of this case. In contrast to Fabiano, the facts presented here did not present even a "close case” of entrapment, let alone a "very close case.” Furthermore, although the trial court applied the "average law-abiding person” standard, the trial court’s opinion reflects its awareness of Justice Brickley’s position regarding the reaction of a person in defendant’s "shoes” to the police conduct in question. Lastly, the trial court did not find that the police conduct was reprehensible. On the basis of our review of the record, such a finding would clearly have been in error. Therefore, we conclude that it is unnecessary to remand this case for consideration of whether entrapment exists under the "second prong” of the test as defined in Fabiano. We are convinced that, under either test, the evidence presented failed to establish entrapment. Hence, the trial court properly denied defendant’s motion to dismiss. Defendant’s convictions and sentences are affirmed.

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Wahls, J. Petitioners appeal by leave granted from an order of the Wayne Circuit Court that upheld a declaratory ruling of the Liquor Control Commission (lcc). The lcc had found that it was prohibited by statute from licensing as a brewer a corporation that is a wholly owned subsidiary of a retail licensee. We agree and affirm. Petitioner Traffic Jam & Snug, Inc., operates a restaurant, bakery, and cheese factory and holds class C and specially designated merchant liquor licenses. Petitioner Dylan Enterprises, Inc., owns the realty where Traffic Jam is located, and both Traffic Jam and Dylan Enterprises are solely owned by petitioner Ben Edwards. Edwards desired to add a "mini-brewery” to Traffic Jam for the purpose of brewing and selling beer to Traffic Jam patrons for consumption on and off the premises. Such an arrangement is commonly known as a "brewpub,” i.e., a restaurant or bar that produces one or more types of beer on its premises, frequently in an area where patrons can observe the brewing process. Edwards intended to create a corporation that would be a wholly owned subsidiary of Traffic Jam & Snug, Inc., license the subsidiary as a brewer, and then have the subsidiary sell its product to Traffic Jam and other retail licens ees. Edwards sought a declaratory ruling from the lcc, framing the issue as follows: Acknowledging that MCL 436.31 [MSA 18.1002] prohibits a manufacturer from having any interest in any other vendor, does MCL 436.31 [MSA 18.1002] prohibit a corporate retail licensee from owning a subsidiary corporation licensed as a manufacturer (brewer)? The lcc found that MCL 436.31; MSA 18.1002 barred petitioners’ proposed arrangement and, hence, the lcc was without authority to license the proposed subsidiary corporation as a brewer. Petitioners appealed to the circuit court, which ruled in favor of the lcc’s interpretation of §31. This appeal followed. Although we recognize that several valid arguments are made by petitioners in opposition to the lcc’s determination, we believe that they must fail in light of the Legislature’s intent in enacting the Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., an intent that is overwhelmingly manifested in the act. The Liquor Control Act imposes several bars to the creation of "tied-house” systems of alcoholic beverage production, distribution, and sale. "Tied house” statutes are aimed at preventing the integration of manufacturing, wholesale, warehouse, and retail outlets in the liquor industry. ... It has been a fear . . . that economic power at one level in this four-tiered system (manufacturers, warehouses, wholesalers, and retailers) could be transferred to another level in order to gain control at the second level. [Borman’s, Inc v Liquor Control Comm, 37 Mich App 738, 746; 195 NW2d 316 (1972).]_ Section 31 proscribes several types of business arrangements that tend to foster vertical integration. Expressions of the Legislature’s intent to prevent vertical integration in the state’s liquor industry, and a few narrow exceptions for certain situations, may also be found elsewhere in the Liquor Control Act. Section 31 provides, in part: (1) Except as provided in section 31a, a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, out-state seller of wine, outstate seller of mixed spirit drink, or vendor of spirits shall not have any financial interest, directly or indirectly, in the establishment, maintenance, operation, or promotion of the business of any other vendor. (2) Except as provided in section 31a, a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, out-state seller of wine, outstate seller of mixed spirit drink, or vendor of spirits or a stockholder of a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, outstate seller of wine, outstate seller of mixed spirit drink, or vendor of spirits shall not have an interest by ownership in fee, leasehold, mortgage, or otherwise, directly or indirectly, in the establishment, maintenance, operation, or promotion of the business of any other vendor. (3) Except as provided in section 31a, a manufacturer, mixed spirit drink manufacturer, ware houseman, wholesaler, outstate seller of beer, out-state seller of wine, outstate seller of mixed spirit drink, or vendor of spirits shall not have an interest directly or indirectly by interlocking directors in a corporation or by interlocking stock ownership in a corporation in the establishment, maintenance, operation, or promotion of the business of any other vendor. (4) Except as provided in section 31a, a person shall not buy the stocks of a manufacturer, mixed spirit drink manufacturer, warehouseman, wholesaler, outstate seller of beer, outstate seller of wine, outstate seller of mixed spirit drink, or vendor of spirits and place the stock in any portfolio under an arrangement, written trust agreement, or form of investment trust agreement and issue participating shares based upon the portfolio, trust agreement, or investment trust agreement, and sell the participating shares within this state. The act’s statutory definition of "manufacturer” includes brewers, MCL 436.2j; MSA 18.972(10), while "vendor” means a person licensed by the lcc to sell alcoholic liquor, MCL 436.2m(g); MSA 18.972(13)(g), including retailers. The primary goal of the judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. State Treasurer v Wilson, 423 Mich 138, 143; 377 NW2d 703 (1985); Joy Management Co v Detroit, 176 Mich App 722, 730; 440 NW2d 654 (1989). Statutes are to be construed as a whole; constructions that render a statute or any part of it surplusage are to be avoided. Niggeling v Dep’t of Transportation, 183 Mich App 770, 775; 455 NW2d 415 (1990). The rules of statutory construction serve as guidelines to assist in determining legislative intent, Rios v Dep’t of State Police, 188 Mich App 166, 169; 469 NW2d 71 (1991), but once the intention of the Legislature is discovered, it must prevail regardless of any conflicting rule of statutory construction, Attorney General v American Way Life Ins Co, 186 Mich App 679, 682; 465 NW2d 56 (1991). Furthermore, the courts will give some deference to the interpretation of a statute by the agency involved in implementing it. Id., at 683. Petitioners claim that § 31, by its plain terms, is intended to govern tied-house arrangements initiated by manufacturers, wholesalers, and other enumerated licensees with other vendors, but that the Legislature’s failure to list retailers among the licensees shows that it did not intend § 31 to govern arrangements entered into by retailers. Petitioners rely on the familiar rule of statutory construction that the express mention of one thing implies the exclusion of others. See In re Lemmer, 191 Mich App 253, 256; 477 NW2d 503 (1991). According to petitioners, restrictions on vertical integration by retailers are addressed by a different section of the act, MCL 436.19d; MSA 18.990(4), which provides, in part: (2) A specially designated distributor or specially designated merchant or any other retailer shall not hold a mixed spirit drink manufacturer, wholesale, warehouse, outstate seller of beer, outstate seller of mixed spirit drink, or outstate seller of wine license. Noticeably lacking from § 19d is the express prohibition of a retail licensee holding a manufacturer license for the brewing of beer. Petitioners conclude that the Legislature’s failure in § 19d to restrict the holding of a brewer’s license by a retailer shows an intent to allow the practice, and further, that if § 31 were interpreted so as to include retailers, then § 19d would be rendered superfluous. Niggeling, supra. Although we recognize these arguments, we believe that the lcc’s determination was correct. The lcc followed the reasoning of California Beer Wholesalers Ass’n v Alcoholic Beverage Control Appeals Bd, 5 Cal 3d 402; 96 Cal Rptr 297; 487 P2d 745 (1971), a case remarkably similar to this case. California Beer Wholesalers Ass’n concerned a corporation organized into two divisions managed and controlled by the same officers and directors. The retail division possessed numerous retail alcoholic beverage licenses. The corporation appealed from the initial denial of its wholesale division’s application for a beer and wine wholesaler’s license. California’s tied-house statutes in relevant part (1) prohibited wholesalers from owning, directly or indirectly, any interest in a retail license, (2) prohibited any retail licensee from holding any ownership or interest, directly or indirectly, in a distilled spirit manufacturer, and (3) contained no express prohibition with regard to a retail licensee holding any interest in a beer and wine wholesaler. The Supreme Court of California summarized: Once the retailer of alcoholic beverages acquires a wholesale beer and wine license, that retailer automatically "holds” the wholesale license; he is accordingly a beer and wine wholesaler "holding” a retail liquor license, and this integration of licenses is specifically forbidden by section 25502. To rule otherwise would be to create the anomolous [sic] situation that the right to hold both licenses would depend upon the fortuity of the order in which a party applied for them. But the error of such an incongruous result would go deeper; it would violate the legislative design of segregating wholesale from retail interests; it would permit, rather than prevent, the merging of the marketing functions and powers that the Legislature meant to keep separate. [Id. at 404.] We find this logic persuasive and adopt it as our own. Section 31 applies to holders of retail licenses, and to hold otherwise would set at naught the public policy of this state, clearly expressed by the Legislature, to prevent vertical integration in the alcoholic liquor business. This holding is consistent with the intent of the Legislature in enacting § 31, our overriding concern in matters of statutory construction. It may very well be that brewpubs are desirable features on our economic and social landscapes, but this is not a question for us, nor is the licensing of brewpubs per se the question before us. Rather, the question is whether any holder of a retail license, be the retailer a restaurant or a retailing behemoth that generates millions of dollars in sales, may also be licensed as a manufacturer. As the lcc put it: The Commission is fully aware, as pointed out by Petitioner in the Request for Declaratory Ruling . . . that the commonly accepted evil which tied-house prohibitions seek to prohibit is manufacturer control of retail outlets. This is because historically manufacturers have had superior economic influence vis-a-vis retailers. However, in today’s business atmosphere it would appear possible, feasible, and perhaps even likely for a large retailer holding liquor licenses to wish to acquire a manufacturer of alcoholic liquor. The Commission would submit that to the extent tied-house arrangements are an evil, the harm is the same regardless of whether it is the manufacturer or the retailer who is the dominant party in the business arrangment.[ ] Affirmed. Petitioners did not intend to have the subsidiary corporation sell beer directly to consumers on the premises of Traffic Jam and the brewery. See OAG, 1985-1986, No 6397, p 397 (October 27, 1986). See, e.g., MCL 436.19d; MSA 18.990(4) (specific restrictions on parties that may hold retail, wholesale, and warehouse licenses); MCL 436.30; MSA 18.1001 (manufacturers, warehousemen, and wholesalers barred from assisting other vendors by gift or loan of money or property); MCL 436.30b; MSA 18.1001(2) and MCL 436.30c(l); MSA 18.1001(3)(1) (statutes setting forth the structure for business arrangements between suppliers and wholesalers of beer and wine); the purpose of the statutes is "[t]o promote and maintain a sound, stable, and viable 3-tier system of distribution of [alcoholic beverages] to the public.” MCL 436.30b(l)(b); MSA 18.1001(2)(l)(b) and MCL 436.30c(l) (b); MSA 18.1001(3)(l)(b). The act itself states, "This act shall be liberally construed to effect the intent and purposes herein set forth.” MCL 436.54; MSA 18.1025. Petitioners bring to our attention the fact that subsection 2 of § 19d was added to the statute by 1969 PA 124, apparently in response to the lcc’s grant of a warehouse license to a retailer. See Borman’s, Inc, supra. Petitioners argue from these facts that, before the amendment of § 19d, even the lcc believed that § 31 did not prohibit retailers from vertically integrating "upstream,” as the petitioner retailer in Borman’s had done before the passage of 1969 PA 124. On the other hand, in 1969 the Legislature also passed SB 436, which would have added retailers to those licensees prohibited by § 31 from holding interests in other vendors. This bill was vetoed by the Governor on the ground of administrative impracticability, because it would have barred retailers from owning stock in any publicly traded corporation having an interest in alcoholic liquor licenses, including food and hotel chains. See 1969 Journal of the Senate 2240. Petitioners attempt to distinguish California Beer Wholesalers Ass’n by arguing that, unlike this case, California Beer Wholesalers Ass’n concerned a single corporation’s acquisition of licenses from more than a single tier in California’s tied-house scheme. Petitioners only briefly claim the case has no value because in the present case two licensees are involved, a corporation and its wholly owned subsidiary. Petitioners provide no authority for the proposition that two corporations, each solely owned by a single person, operating on the same premises for their mutual benefit, should not be considered a single entity for the purpose of alcoholic beverage licensing and § 31. Nor is there any indication in the record provided this Court of the details of petitioners’ proposed corporate organization, other than that the brewer would be a wholly owned subsidiary of Traffic Jam. It is also possible that, even if the two corporations were to be regarded as separate entities, the subsidiary brewer would run afoul of § 31’s provision that "a manufacturer . . . shall not have any financial interest, directly or indirectly, in the establishment, maintenance, operation, or promotion of the business of any other vendor.” Neither party argues the meaning of "financial interest,” and because we will not presume the petitioner corporations are separate entities for the purpose of alcoholic beverage control, we will not address the subject. We note, however, that petitioners’ assertion, if accepted, would elevate form over substance and provide any person operating at any level in the three-tier system a facile method of circumventing public policy through a corporate reshuffling. Cal Bus & Prof Code, § 25502. Cal Bus & Prof Code, § 25506. Petitioners complain at length that the quoted paragraph is a "finding that the proposed licensing is 'evil’ as a matter of law [and] is arbitrary, capricious, and an abuse of discretion,” as well as being outside the scope of the lcc’s authority. We regard the lcc’s statement as merely an expression of longstanding public policy.

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Michael J. Kelly, J. Plaintiff Benjamin P. Lawrence filed suit against defendants Will Darrah & Associates, Inc., and Lucy J. Barker (hereinafter defendant), an insurance representative underwriter, to collect damages recoverable under the insurance policy and consequential damages in the form of lost profits caused by defendant’s failure to timely pay plaintiff’s claim. Plaintiff’s claim stems from the theft of his 1975 International Harvester tractor truck used in his capacity as an independent contractor. The truck was insured under a 1981 insurance policy written by defendant. Defendant failed to pay plaintiff’s claim under the policy after the truck was stolen. Plaintiff then brought this action, seeking recovery for the truck and consequential damages in the form of lost profits. Judgment in favor of plaintiff was rendered in part by the court and in part by the jury, totaling $155,153 ($19,250 for damages under the insurance contract and $70,800 for lost profits, plus interest on both). Defendant appealed as of right, and plaintiff cross appealed. Defendant first claims that the trial court erred in denying her motion for a directed verdict because the proofs at trial showed only that she knew that plaintiff used his tractor in a commercial venture and that this was insufficient to create a factual issue regarding whether lost profits were foreseeable when the policy was issued. We agree. The trial court should have directed a verdict in favor of the defendants and against the plaintiff with regard to plaintiff’s claim for lost profits. It is undisputed that the policy in question covered only physical damage to the truck. That is, plaintiff bought and paid for insurance coverage for loss of or damage to the vehicle itself and not for any loss of earnings, productivity, or profits occasioned by down time or loss of the use of the vehicle itself. Plaintiff’s lost profits are not recoverable as consequential damages contemplated by the parties at the time the contract was made. Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854). The commentators usually say that consequential damages are borne by the undertaking party, in this case the insurance underwriters, only if the magnitude or appreciation of the risk was known at the time of the contract. In this case, the parties and the court below were beguiled by the fact that the insurance company knew that plaintiff used his truck for business. They concluded that, knowing the truck was used for business, the insurance company should be charged with knowl edge that loss of the truck meant loss of business profits. That deduction is correct, but irrelevant. It overlooks the important fact that the contract did not insure against loss of profits. Such knowledge does not automatically establish that the parties contemplated damages for lost profits at the time the contract was made. In sum, plaintiff may not recover lost profits as consequential damages under the circumstances of this case. The trial court erred in denying defendant’s motion for a directed verdict in this regard. Defendant next argues that the trial court erred in its assessment of interest on the damages award. It appears from the record that interest on the $19,250 award was calculated on a compound interest basis rather than on a simple interest basis as mandated by MCL 500.2006; MSA 24.12006. Therefore, we remand this matter to the trial court for modification of the judgment to reflect simple interest. Lastly, plaintiff argues that the trial court erred in granting defendant’s motion for summary disposition of plaintiff’s claim of intentional infliction of emotional distress. We disagree. Defendant’s obligations under the insurance policy were contractual in nature. A mere failure to pay a contractual obligation does not amount to outrageous conduct for purposes of the tort of intentional infliction of emotional distress. Even a wilful or bad-faith failure to pay the contractual obligation does not amount to outrageous conduct. Wendt v Auto-Owners Ins Co, 156 Mich App 19, 27-29; 401 NW2d 375 (1986); McCahill v Commercial Union Ins Co, 179 Mich App 761, 768; 446 NW2d 579 (1989). Therefore, the trial court did not err in granting defendant’s motion for summary disposition of plaintiff’s claim of intentional infliction of emotional distress. Reversed in part, affirmed in part, and remanded for proceedings consistent with this opinion.

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Per Curiam. This case arises out of condemnation proceedings instituted under MCLA §§ 213.361-213.381 (Stat Ann 1971 Cum Supp §§ 8.261 [1]-8.261 [21]). The road commission instituted proceedings to condemn 1.33 acres of defendants’ land in order that the intersection of Brighton and Bauer Boads might be relocated. Defendants moved to review the necessity of the taking pursuant to MCLA § 213.368 (Stat Ann 1971 Cum Supp § 8.261 [8]), alleging an abuse of discretion on the part of the board. The trial court found the board abused its discretion and entered a judgment dismissing the board’s petition. From that judgment the board appeals. The board filed a declaration of necessity along with its petition, asserting that relocation was necessary by reason of the high accident rate in the area of the present intersection. The law with regard to the effect of a declaration of necessity by a condemning authority was set forth in the recent decision of this Court in Kalamazoo Road Commis sioners v. Dosca (1970), 21 Mich App 546, 548, wherein it was held: “A declaration of necessity by the condemning • authority serves as prima facie evidence of the necessity and consequently makes it incumbent upon the property owner to show the contrary. City of Allegan v. Vonasek (1932), 261 Mich 16. The record in this case fails to show that the defendants have overcome plaintiff’s prima facie show of necessity by any proofs of fraud or an abuse of discretion.” PA 1966, No. 295 (MCLA §§ 213.361-213.391, supra) gave the legislative authority to determine necessity to the instant condemning agency. Judicial review of the necessity of the taking was provided for by way of a petition in circuit court by any person having a justifiable interest and “claiming fraud or abuse of discretion, or both”. MCLA § 213.368, supra. In the instant case, the board had determined that the intersection in question was a traffic hazard and that the relocation to the north would not only alleviate this condition, but also would improve visibility and be less expensive than relocation to the south. At the circuit court hearing, the petitioner presented two civil engineers, the clerk of the board, and an individual who resided to the south of the present intersection in support of the conclusions previously arrived at. The defendants, on the other hand, although having the burden of proof, offered no evidence whatsoever; but rather they argued that the proposed relocation would increase the hazard associated with a curve located to the east and that the hazard associated with the present intersection could be alleviated by the use of speed limit signs. The board countered these arguments by claiming that they could afford only the proposed improvement, but that the curve to the east would be improved as soon as possible. The court found that the board had acted “within its limitations in the area of money”, that evidence was lacking in regard to correction of a curve to the east, and that no efforts had been made to alleviate the present hazard by the use of speed limit signs. Consequently, we have the issue: Bid the trial court err in finding that the road commission abused its discretion in determining that it was necessary to relocate the road and intersection, and thereby required the acquisition of defendants’ land for such relocation? What authority did the trial judge have in reviewing the actions of the road commission? What general policy should be adopted for such a situation? Fortunately, we have a decision from the State of Texas which throws some light on the subject. In Webb v. Dameron (Tex Civ App, 1949), 219 SW2d 581, 584, it was held: “Necessarily a broad discretion is vested in those to whom power of eminent domain is delegated, and as a general rule the courts of this country will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion.” Additional assistance is found in United States v. Agee (CA 6, 1963), 322 F2d 139, 141, where it was held: “First we consider the question of the scope of judicial review. Appellee argues that the district court and this Court are foreclosed absolutely from reviewing the decision of the condemning authority. We are unwilling so to hold, though it is well-established that the scope of judicial review of administrative determinations in eminent domain proceedings is extremely narrow.” Again, we must emphasize the fact that the burden of proof was on the defendants. Certainly, the fact that the relocation to the north would cost less would not be fraud or an abuse of discretion. Further, the plans for the other curve were not before the court at that hearing and the question of whether or not signs should be erected would be a matter of judgment addressed to expertise of the road commission. While this Court has repeatedly held that it does not reverse a trial judge, sitting without a jury, unless the findings are clearly erroneous, regretfully, after a careful review of the record as here presented, we hold that the trial court was clearly erroneous in finding that the Board of County Road Commissioners abused its discretion in its determination of necessity. Reversed and remanded for proceedings not inconsistent with this opinion. In fairness to the learned circuit judge, it should be mentioned that it is within the realm of possibility that he did not have the benefit of this decision on October 19, 1970, the date upon which the judgment was signed.

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Per Curiam. On August 14,1970, a Wayne County jury convicted defendant Tyrone Williams and defendant James Marlin, Jr., on charges of assáult with intent to rob while armed, a violation of MCLA 750.89; MSA 28.284, and assault to do great bodily harm less than murder, a violation of MCLA 750.84; MSA 28.279. On this appeal defendant Williams argues that the trial judge erred in refusing to permit him to introduce evidence of an alibi defense. Williams in formed the judge of his wish to present an alihi defense on the first day of trial. At that time the judge questioned "Williams and Williams said that “three weeks ago” he had informed his lawyer of his alibi defense. The judge determined that there had been ample opportunity to present timely notice of alibi. In such circumstances the judge justifiably refused to permit Williams to introduce witnesses in support of his alibi. MCLA 768.20; MSA 28.1043 and People v Vaughn, 31 Mich App 599 (1971). The defendants contend that the failure of defense counsel to file a notice of alibi deprived them of the effective assistance of counsel. In People v Jelks, 33 Mich App 425, 431 (1971), we said: “A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately.” A motion for a new trial was filed in this case in which the denial of effective-assistance-of-counsel issue was raised. However, at the hearing on the motion no testimony or other evidence was offered bearing on the question whether defense counsel acted diligently and, in particular, counsel’s explanation or lack of explanation for failing to file a notice of alihi has not been spread on the record. Accordingly, we have nothing before us which would justify our concluding that the defendants had evidentially supported their claim and excluded reasonable hypotheses consistent with the view that they were adequately represented by counsel. When, during the jury’s deliberations, the foreman submitted a question, the judge discussed his proposed response with counsel for both parties and defense counsel did not voice any objection to the proposed response which the judge later gave to the jury’s question. The defendants further contend that the judge should have granted their request to instruct the jury on the lesser offenses of the attempt to commit the charged offenses. The contention is without merit. The record shows that the completed offenses were committed. There is no evidence in the record from which the jury could reasonably have inferred that the charged offenses were not committed and that the actions of the defendants did not go beyond the attempt stage. Accordingly, the judge properly refused to instruct the jurors that they could convict the defendants of the crimes of attempt to commit the charged offenses. Defendant Marlin argues that he was prejudiced by the judge’s refusal to permit the defendant Williams to introduce evidence of alibi. Marlin testified that he was not with Williams on the evening the crime was committed. In that context, we do not think that Marlin was deprived of a fair trial by the judge’s ruling that Williams’ failure to give notice of alibi deprived him of the right to produce alibi witnesses. Affirmed.

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Per Curiam. Defendants appeal as of right from a judgment entered in favor of plaintiff. Before this action, plaintiff was a judgment creditor of defendant Carrigan Quality Homes, Inc., now known as Carrigan Construction & Energy Products, Inc. Plaintiff brought this action against individual defendants Claude Carrigan and Billie Carrigan, husband and wife, after her judgment against the corporation was not satisfied, alleging that the Carrigans had transferred nearly all the corporation’s assets out of its ownership and into their own between the time a mediation agreement was reached and the consent judgment against the corporation was entered, thereby frustrating her attempt to enforce the judgment against the corporation. Plaintiff’s claim was based on alleged violations of § 7 of the Uniform Fraudulent Conveyance Act, MCL 566.17; MSA 26.887, and § 551 of the Business Corporation Act, MCL 450.1551; MSA 21.200(551) (since amended by 1989 PA 121). We reverse in part and remand the case for additional findings of fact. At the outset, we express our opinion that all the factual findings made by the trial court are supported by the evidence and are not clearly erroneous, MCR 2.613(C). In particular, we note that the trial court’s findings concerning the lack of consideration for the conveyances to defendants and the insolvency of the corporation at the time of the conveyances and its finding that the transfers were made in an attempt to frustrate plaintiffs collection of the judgment are well-founded. We find it necessary to remand this case, however, because of the lack of certain findings that are needed to fully address several basic issues raised by defendants and because of an error of law. The trial court made no findings regarding the basis of defendant Billie Carrigan’s liability. We agree with Mrs. Carrigan that she cannot be held liable under MCL 450.1551; MSA 21.200(551) because she is not a director of the defendant corporation. Because of the lack of a finding by the trial court, however, we are unable to review her liability under the Uniform Fraudulent Conveyance Act. Section 7 of that act provides: Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. [MCL 566.17; MSA 26.887.] Little testimony was elicited concerning Mrs. Carrigan’s role or knowledge of the transfer of the corporation’s assets. Mrs. Carrigan’s assertion that she cannot be held liable unless she personally conveyed the assets, however, is incorrect. A grantee need not personally participate in a fraudulent conveyance in order to be liable to a defrauded creditor. Spencer v Miller, 279 Mich 194, 200; 271 NW 731 (1937). It appears from the record that the conveyances to Mrs. Carrigan were without consideration. A grantee who receives property or money without giving fair consideration to the fraudulent grantor is subject to having the conveyance set aside and also subject to any other remedies normally available to the creditor. Kelley v Thomas Solvent Co, 722 F Supp 1492, 1499 (WD Mich, 1989). Furthermore, fraudulent intent may be inferred where a conveyance renders the grantor insolvent. Cross v Wagenmaker, 329 Mich 100, 104; 44 NW2d 888 (1950). The courts will closely scrutinize transactions between a husband and wife when creditors are involved. Bentley v Caille, 289 Mich 74, 79; 286 NW 163 (1939); Linke v Goodrich, 30 Mich App 228, 230; 186 NW2d 5 (1971). For reasons that will be discussed below, we strongly suspect that the conveyances here may be deemed as between family members, rather than from the corporation, but we are unable to so hold absent a finding from the trial court. We therefore remand the case for further findings. If needed, the trial court may allow additional testimony to be heard before making its findings. MCR 7.216(A)(5). Defendant Claude Carrigan argues that he cannot be held personally and individually liable under the Uniform Fraudulent Conveyance Act because the assets were conveyed by the corporation, not him. The law respects corporate entities unless they are employed for fraud or other purposes improper for the corporate form. Disregard of the corporate form rests on notions of equity, whether an action is at law or one for equity, and is made in light of the entire spectrum of relevant evidence in a particular case. Om-El Export Co, Inc v Newcor, Inc, 154 Mich App 471, 480; 398 NW2d 440 (1986); Kline v Kline, 104 Mich App 700, 703; 305 NW2d 297 (1981). Mr. Carrigan was a director and forty percent shareholder of the closely-held corporation. The record is rife with evidence from which the trial court could have "pierced the corporate veil” and concluded that Mr. Carrigan was acting on his own behalf, not that of the corporation, as the grantor-in-fact and used the corporation’s assets in a way calculated to defraud plaintiff and enrich himself. However, no findings were made regarding whether the corporate form should be disregarded, and this Court is not in a position to find facts. We note, however, that Mr. Carrigan’s § 7 liability as a grantee, a question not decided by the trial court, appears to be beyond question. The trial court found that the transfers were made with fraudulent intent and that Mr. Carrigan knew of and participated in the fraud. Therefore, plaintiff may seek to have the transfers to Mr. Carrigan voided. ACLI Government Securities, Inc v Rhoades, 653 F Supp 1388 (SD NY, 1987), aff'd 842 F2d 1287 (CA 2, 1988); Deyong Management, Ltd v Previs, 47 Wash App 341; 735 P2d 79 (1987). Furthermore, where a grantee has knowingly participated in a fraudulent conveyance, a defrauded creditor may have recourse directly against the grantee to the extent of the value of the property conveyed. See Deyong Management, supra, MCL 566.19(1); MSA 26.889(1), and MCL 566.21; MSA 26.891. We remand the case for further findings regarding Claude Carrigan’s liability under the Uniform Fraudulent Conveyance Act. Again, additional testimony may be taken. The trial court also determined that Claude Carrigan violated §551 of the Business Corporation Act, MCL 450.1551; MSA 21.200(551). Mr. Carrigan first argues that he cannot be held individually liable as a director because plaintiffs pleadings did not name him as a defendant in this capacity. Mr. Carrigan has abandoned this issue because of his failure to identify any relevant authority in support of his argument, and we will not review it. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 129-130; 463 NW2d 442 (1990). We agree with Mr. Carrigan, however, that his liability cannot be predicated on the violation of § 551 found by the trial court. The trial court held that Mr. Carrigan had violated MCL 450.1551(l)(c); MSA 21.200(551)(l)(c), which at times relevant to this action provided: (1) In addition to any other liability imposed by this act or other law upon directors of a corporation, directors who vote for, or concur in, any of the following corporate actions are jointly and severally liable to the corporation for the benefit of its creditors or shareholders, to the extent of any legally recoverable injury suffered by such persons as a result of the action but not to exceed the amount unlawfully paid or distributed: (c) Distribution of assets to shareholders during or after dissolution of the corporation without paying, or adequately providing for, all known debts, obligations and liabilities of the corporation. At the time of the conveyances, however, the corporation was not undergoing dissolution. MCL 450.1551(l)(c); MSA 21.200(551)(l)(c) is thus inapplicable to the facts before us. It is certainly possible that Mr. Carrigan may be held personally liable to plaintiff under some other section of the Business Corporation Act. For example, it appears that Mr. Carrigan usurped a corporate opportunity by his conveyance of the Silver Lake property to his South Carolina corporation through a straw-man. Although plaintiff had raised this issue below, no express findings were made by the trial court with regard to this transaction. Mr. Carrigan’s liability may not, however, be founded on a violation of MCL 450.1551(l)(c); MSA 21.200(551)(1) (c). The trial court’s ruling to the contrary was erroneous. Defendants’ remaining issues are not properly before us. Defendants’ extended discussion of their liability under § 4 of the Uniform Fraudulent Conveyance Act, MCL 566.14; MSA 26.884, is irrelevant, because the trial court did not find defendants liable under this section. Because the judgment was not rendered against the corporation, the individual defendants’ discussion of the corporation’s liability is irrelevant. By their failure to identify relevant authority on appeal, defendants have abandoned the issue whether the trial court erred in allowing into evidence testimony concerning conveyances that had not been pleaded in the complaint. Ward, supra. Defendants’ argument that the corporation had a right to prefer the Carrigans as creditors over plaintiff as a judgment creditor is not properly before us because of the absence of a finding concerning the Carrigans’ alleged status as creditors, an issue that was disputed below. Justus v Swope, 184 Mich App 91, 100; 457 NW2d 103 (1990); Joe Dwyer, Inc v Jaguar Cars, Inc, 167 Mich App 672, 685; 423 NW2d 311 (1988). The judgment is reversed insofar as it pertains to both Claude and Billie Carrigan’s liability under the Business Corporation Act. The case is remanded to the trial court so that additional findings of fact may be made as requested by this opinion. We retain jurisdiction. Reversed in part and remanded. Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such purchaser; (a) Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or (b) Disregard the conveyance and attach or levy execution upon the property conveyed. In any case not provided for in this act, the rules of law and equity including the law merchant, and in particular the rules relating to the law of principal and agent, and the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy or other invalidating cause shall govern.

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Per Curiam. Defendant appeals as of right his January 5, 1990, jury conviction and January 16, 1990, sentence for carrying a concealed weapon, MCL 750.227; MSA 28.424. Recorder’s Court Judge Warfield Moore, Jr., sentenced him to eighteen months to five years in prison. The guideline sentence range was zero to twelve months. Defendant raises issues of improper judicial comments, improper denial of a motion for mistrial, lack of due diligence in obtaining a witness, and abuse of discretion in sentencing. We reverse. We are again confronted with issues of judicial misconduct related to Judge Warfield Moore. The relevant portions of Canon 3 of the Michigan Code of Judicial Conduct relating to the issues in the present case are as follows: A. Adjudicative Responsibilities: (8) A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto. Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone. He should avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment. In addition, Canon 2 of the Code of Judicial Conduct provides: B. A judge should respect and observe the law and should conduct himself at all times in a man ner that promotes public confidence in the integrity and impartiality of the judiciary. The record is replete with instances of highly questionable judicial conduct during the course of this trial. However, our opinion will focus primarily on those instances that have jeopardized the defendant’s opportunity for a fair trial. Judge Moore was clearly "not the neutral and detached magistrate of justice that any defendant is entitled to expect in a criminal trial.” People v Moore, 161 Mich App 615, 619; 411 NW2d 797 (1987). i In the present case, defendant argues that the judge denied him a fair trial by repeatedly interjecting improper and impartial comments and questions. We agree. Judge Moore’s conduct in questioning witnesses and jurors constituted an abandonment of his mantle of judicial impartiality and denied defendant a fair trial. Defendant claims the judge unjustifiably aroused suspicions in the mind of the jury with respect to the credibility of a witness and through his comments connected the defendant to conduct of which he expressed disapproval. In questioning a witness about the timing of his preliminary hearing testimony, Judge Moore volunteered: The Court: Before Thanksgiving, right? I mean you don’t go to court everyday? When the defense attorney later objected to the relevance of the prosecutor’s question whether the witness called the police to offer a statement about the incident involving defendant, the judge responded: The Court: It has to do with him, when he first indicated to anybody that this man had not in his vision or from what he saw, committed a crime. That’s all. It just has to do with when he first told it. That’s all. And that’s relevant for the jury to determine if there’s credibility and weight to give to his testimony today. Judge Moore commented numerous times during voir dire and trial that guns are a "terrible thing in society.” He then instructed the jury regarding the presumption of innocence and proceeded to ask what their verdict would be before trial. Although the judge was attempting to inform the jury that before any evidence was presented they must presume defendant’s innocence, it was clear from the record that many jurors felt intimidated and did not understand what he was doing: The Court: Mr. Conyers, as he sits here now, is presumptively innocent. What do we mean by that? Am I saying he is not guilty of this? No. I am certainly not saying that. As a matter of fact, I will never tell you that. That will not be my responsibility. My responsibility is to tell you what the law is, to instruct you, to see that the trial is had fairly and properly and efficiently. And it will be for you to decide, based on the evidence, that you hear, and the facts that you determine from that evidence, as to whether you believe that there is sufficient evidence to prove beyond a reasonable doubt that this man is guilty. But the defendant is clothed with the presumption of innocence. Now, its no sense in us sitting here and talking about presumptions, because everyday of our lives, and especially at this time of the year, when everyone is summarizing how many people have died from gun shot wounds in Detroit and everywhere else, guns are a big issue in our society. It seems that everyday somebody — something happens with somebody relative to a gun. And so, we know there are many guns in the community. And we know, in truth, that people carry those guns because you have to have it in order that all of these things happen. And why am I saying that to you? Because it may be, ladies and gentlemen, because the defendant is charged with this crime, that some of you say, well, I cannot presume him to be innocent. I know I haven’t heard any evidence of his guilt, but because of the proliferation of guns in our community and because of all of the activity therewith, I cannot, in honesty, say as I look at Mr. Conyers, that I presume him to be innocent. The Court: Miss Allen, if for some reason, however, if I told you under oath, gave you a[n] oath and told you to go in and make a decision in connection with this matter and you heard no witnesses, right now, based on what I have told you and what has been said here so far, if I ask you to go in the jury room along with these eleven other persons and to render a verdict, what would your verdict be now, based on the presumption of innocence, burden of proof, and reasonable doubt? What would your verdict be right now? Prospective Juror Number Seven: I would want justice done. The Court: Yes, ma’am. I love to hear that. What is your verdict, guilty or not guilty? In criminal cases we don’t have any verdict about justice done. We have a verdict of guilty or not guilty. See, folks, I want you to get used to that. You can’t say anything else but guilty or not guilty in [a] criminal case. Did somebody — it’s guilty or not guilty. What is your verdict, guilty or not guilty, if you had to go in there based on having heard no one talk but me? Prospective Juror Number Seven: From the way you talked, I would have a doubt that he would be. The Court: What would your verdict be? Prospective Juror Number Seven: I think I would say, guilty. The Court: What about that, Mr. McCoy. Prospective Juror Number Seven: I feel justice should be done. Prospective Juror Number Twelve: The same, guilty. The Court: Guilty, is that right? What about that Miss Bobbit, guilty or I don’t know? Prospective Juror Number Eight: I don’t know. The Court: What about that Miss Smith, what would your verdict be? Prospective Juror Number Four: I don’t know. The Court: What about that Miss Cooper, our personality person? The Court: How could you find him guilty? Prospective Juror Number Twelve: I am going on looks. The Court: Looks? Because he is young and black? Prospective Juror Number Twelve: No. The Court: Mustache or striped shirt? I mean, I’m serious. What do you see about him that makes him look guilty? Do you know what, mister? He looks enough like you to be a relative of yours. Same complexion. Same skin tone. Same mustache. I swear. To me, he looks enough like Mr. McCoy that he could be a relative of his. What do you see about him that makes you think he is guilty of anything? Prospective Juror Number Twelve: A feeling I have. The Court: I mean, he has not projected it. Well, you think there is a smugness about him? Prospective Juror Number Twelve: Right. The Court: Pardon? I can’t hear you, ma’am. Would you mind speaking up. I know you are shaking. I don’t know if you are shaking because you are scared or what. You are a secretary for the South End. Speak to us, ma’am. Do you have any reason to believe that this man — or that any crime was committed? Have you heard any evidence of that, ma’am? Prospective Juror Number Four: No. The Court: I don’t know how to explain it. You, now, based on what we have explained, would find the defendant not guilty — who of you would do that, would you raise your hand? Miss Bobbit, you still don’t know? Prospectivé Juror Number Eight: No. The Court: Why don’t you know, Miss Bobbit, right now, based on what you have heard? Prospective Juror Number Eight: Well .... The Court: I can’t hear you, ma’am. Would you mind shouting a little bit? Prospective Juror Number Eight: I don’t know. The Court: You don’t know. But you think you might find him not guilty? Your name is Sheldon Taps. How are you? Sheldon Taps was a client of mine twenty years ago. I haven’t seen him since. I hope that’s why you came in, to see me because you remember me as your attorney. He looks just like that except twenty years younger twenty years ago. But any way, Miss Bobbit, you still don’t know why you would find — why you can’t find him not guilty? You just don’t know. You just have a bad feeling, is that right? Prospective Juror Number Eight: Right. After inviting the attorneys to ask the jurors anything they would like, the following exchange occurred: Mr. Handy [defense counsel]: That there is a right for a person who has been accused of a crime to have the presumption of innocence around him. It’s like a [sic] umbrella. It’s like . . . The Court: They understand what it is. Don’t you all understand what the presumption of innocence is? He is presumed to be innocent. Mr. Handy: I am trying to make sure. The Court: They say if they hear anymore, they may go back. They understand, Mr. Handy. Let’s get to something they don’t understand. The Court: A police officer is a person who is hired to do his work, like Mr. Handy is hired to do his work and I do mine. Thank you. I am elected by you and I am running again this year. Mr. Handy: But, your Honor . . . The Court: And Mr. Handy even helped me in my campaign initially. But you think because of that there is any reason why you can’t be mistaken or that you are infallible and to ask him about what his officers do and what they don’t do and all of that, it’s beyond the scope .... Later, when a police officer was being cross-examined, the following exchange occurred: Q. One moment. You say that an officer chased somebody else through the house. However, from the time that you got out of your plain clothes car (sic) you directed your total attention toward my client and then chased him only, correct? The Court: But you asked him . . . The Witness: No, sir. The Court: He responded to the question that you asked, Mr. Handy. You asked him, did anybody else go in the house? And he is telling you that he has the impression that somebody else went in under these circumstances. Since you asked him the question, he gave you an answer. Now, you want to ask him, how do you know that? He said, I just have a sense of that. That’s all. I didn’t see it. I didn’t watch it or whatever. But I have the impression that my partner or uniformed officer, chased somebody into the house. Now you want to argue with him. The attorney then requested that the judge allow him to pose questions regarding the witness’ personal knowledge, and not just impressions, and reminded the judge that the judge had instructed the jury with regard to testimony. As the defense attorney continued cross-examination, the court again intervened: Q. Was he running as fast as he could as far as you could tell? The Court: How could he tell that? Mr. Handy: I was just asking, your Honor. The Court: How could he tell that? That’s pure speculation. How fast — we have to get him out and and [sic] see if he is on steroids to know how fast he can run. How fast does he know your client can run? Q. Was he running faster than you? The Court: Apparently not. He caught him. Mr. Handy: Your honor, please. The Court: It’s a silly question, counsel. In the present case, excessive interference in the examination of witnesses, repeated rebukes and disparaging remarks directed at defendant’s counsel, and marked impatience in the presence of the jury displayed an attitude of partisanship, which resulted in the denial of a fair trial. See People v London, 40 Mich App 124, 127; 198 NW2d 723 (1972); United States v Coke, 339 F2d 183, 185 (CA 2, 1964). Defense counsel also was not treated with the consideration due an officer of the court. People v Wigfall, 160 Mich App 765, 775; 408 NW2d 551 (1987). The trial court may question witnesses in order to clarify testimony or elicit additional relevant information. MRE 614(b); People v Sterling, 154 Mich App 223, 228; 397 NW2d 182 (1986); People v Pawelczak, 125 Mich App 231, 236; 336 NW2d 453 (1983). However, the trial court must exercise caution and restraint to ensure that its questions are not intimidating, argumentative, prejudicial, unfair, or partial. Sterling, supra; People v Cole, 349 Mich 175; 84 NW2d 711 (1957); People v Jackson, 97 Mich App 660, 662; 296 NW2d 135 (1980). The test is whether the "judge’s questions and comments 'may well have unjustifiably aroused suspicion in the mind of the jury’ as to a witness’ credibility, . . . and whether partiality 'quite possibly could have influenced the jury to the detriment of defendant’s case.’ ” Sterling, supra, quoting People v Redfern, 71 Mich App 452, 457; 248 NW2d 582 (1976), citing People v Smith, 64 Mich App 263, 267; 235 NW2d 754 (1975) (emphasis in original). There is no question that Judge Moore crossed the line of impartiality when he instructed the prospective jurors that although defendant was presumed innocent, he would never tell them the defendant was not guilty. Again, it appears that Judge Moore was attempting to explain to the jury that he was not the factfinder. However, by stating that he would not say defendant is not guilty without explaining that he also would not say defendant is guilty, he presented bias that was readily apparent to at least one juror. Judge Moore’s explanation of the presumption of innocence was very confusing, and his intimidation of the jurors and the attorneys appeared on the record to be almost intentional. His comments about the problem with guns seemed to invite the jurors to convict the defendant as part of their civic duty. His repeated comments about the expected length of the trial could have led jurors to the conclusion that this was an open-and-shut case. However, he did try to balance the comments by explaining that the trial would be short because it was not a complicated case. He later told the jury that he would see them at two o’clock and hoped for a verdict by three o’clock. At the trial, the judge not only became a commentator and interpreter of the witness’ testimony, but he also volunteered information that was not in evidence. His campaigning from the bench also had the appearance of showing the jury that he was "tough on crime” and that he wasn’t the one wasting the jury’s time in a trial of an obviously guilty defendant. His ruling that a witness need not be called, and that the witness’ testimony would probably be exculpatory anyway, demonstrated bias. Judge Moore’s attitude toward the defendant is aptly summarized by his comment, "He can go pee in the cup in the lock up.” For these reasons alone reversal is required. ii Because of our ruling with regard to the first issue, we find it unnecessary to discuss defendant’s other grounds for reversal. However, it is quite clear that had we not reversed on the basis of the first issue, we would have on the basis of at least one of the other issues for the same reasons mentioned previously. The instances of impropriety were too numerous to count, too pervasive to find harmless, and too prejudicial to tolerate. We would seriously caution the trial judge to limit his comments to those that are appropriate to the administration of justice. Defendant’s conviction is reversed, sentence is vacated, and the case is remanded for a new trial before a different judge of the Detroit Recorder’s Court. Reversed and remanded. This is at least the fifth time we have had to reverse on similar grounds jury convictions obtained in Judge Warfield Moore’s court. See People v Moore, 161 Mich App 615; 411 NW2d 797 (1987); People v Sterling, 154 Mich App 223; 397 NW2d 182 (1986); People v Audison, 126 Mich App 829; 338 NW2d 235 (1983); People v Hudgins, 125 Mich App 140; 336 NW2d 241 (1983). This comment was one of the few that were not heard by the jury.

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Connor, J. Plaintiffs appeal as of right in Docket No. 129864 from the trial court’s May 21, 1990, order granting defendants summary disposition. Defendants also have appealed in Docket No. 131543 from the trial court’s July 30, 1990, order denying their request for costs, sanctions, and attorney fees. We reverse the trial court’s grant of summary disposition and remand this matter to the trial court for additional proceedings. Originally, defendants had sued plaintiffs Victor Triplett and Trinity Chemical Company for injuries defendant Patricia St. Amour allegedly received in a motor vehicle accident on February 26, 1986. The parties reached an agreement to settle all claims against plaintiffs for $20,000. Plaintiff Federated Mutual Insurance Company had provided insurance and participated in the defense of the action against the plaintiffs. On May 3, 1988, the Cheboygan Circuit Court, pursuant to the parties’ stipulation, entered an order dismissing the case with prejudice. Sometime after the original case was dismissed, plaintiffs claimed to have newly discovered that before the automobile accident involving plaintiffs, Patricia St. Amour had suffered an injury to her arm for which she received treatment on January 29, 1986. During the course of discovery and settlement negotiations, plaintiffs alleged that defen dants had denied that Patricia St. Amour had suffered any previous arm injuries. Plaintiffs apparently learned of the prior treatment when defendants sued the treating physician for disclosing information about defendant Patricia St. Amour’s treatment and injury. Plaintiffs sued defendants in the Kalkaska Circuit Court, alleging fraud related to the settlement agreement on the basis of undisclosed information about Patricia St. Amour’s medical condition. Plaintiffs’ second amended complaint included allegations of fraud in tort and did not request recision of the settlement agreement or the order of dismissal. Plaintiffs also requested damages for the cost of defending in the prior action. The trial court granted summary disposition for defendants, MCR 2.116(C)(8), and dismissed this action for failure to state a claim upon which relief could be granted. The lower court held that plaintiffs’ case involved intrinsic fraud, and therefore the remedy was not to bring an independent action but rather to seek relief from the prior order entered pursuant to the settlement agreement, MCR 2.612(C)(1). The trial court did not believe that these facts would support an independent cause of action, either at law or in equity. We disagree. A motion under MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, is designed to test the legal sufficiency of a claim by the pleadings alone. All factual allegations, and any fair inferences drawn therefrom, in support of the claim are accepted as true. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Kassab v Michigan Basic Property Ins Ass’n, 185 Mich App 206, 212-213; 460 NW2d 300 (1990), lv gtd 439 Mich 864 (1991). We conclude from our review of the second amended complaint that plaintiffs were seeking damages that flowed from the execution of the settlement agreement with defendants, as well as costs associated with defending in the original case. Plaintiffs were not seeking to set aside the settlement with defendants, but were alleging an action at law for fraud. The trial court believed, on the basis of Rogoski v Muskegon, 107 Mich App 730; 309 NW2d 718 (1981), that a new action for fraud could not be brought in this case because the prior action was a bar under either res judicata or collateral estoppel. Consequently, plaintiffs’ only remedy was to move for relief from the order of dismissal in the Cheboygan Circuit Court in accordance with MCR 2.612(C)(1). The trial court also believed an independent action in equity for relief from the order of dismissal and the settlement agreement could not be maintained under MCR 2.612(C)(3) because this case did not involve extrinsic fraud. We believe the trial court erred. The holding in Rogoski was distinguished by the panel in Courtney v Feldstein, 147 Mich App 70; 382 NW2d 734 (1985). In Courtney, p 73, the plaintiff filed a separate action for fraud against her former husband, alleging that the husband induced the plaintiff to enter into an unfavorable property settlement by fraudulently concealing the value of his interests in two corporations during the divorce action. The majority panel in Courtney held that the plaintiff could maintain an independent action for fraud and was not barred by the doctrine of res judicata. The opinion quoted from 37 Am Jur 2d, Fraud and Deceit, § 488, p 676, as follows: "It has been held that a judgment or decree entered in accordance with the settlement of a claim does not bar an action for damages resulting from fraud where the wrongdoer fraudulently conceals his wrong from the injured person, who agrees, in ignorance of the wrong, to the settlement and entry of the judgment or decree. ” Although neither the parties nor the trial court fully addressed this issue because the parties failed to cite Courtney, we believe that by ruling that plaintiffs could not file a separate action for fraud, but had to seek relief from their previous settlement in the prior action only, the trial court held, in effect, that an independent action for fraud was barred by the doctrine of res judicata or collateral estoppel because of the prior action. We do not believe the fact that this action involves a previous case limits plaintiffs’ remedies to merely setting aside the previous order of dismissal. Plaintiffs do not want to simply avoid the prior release, such as an injured party may want to do in order not to be barred from filing suit. See Style v Greenslade, 364 Mich 679, 680-681; 112 NW2d 92 (1961). Rather, plaintiffs are seeking a remedy in tort for fraud in association with the former lawsuit. As the panel in Courtney pointed out, the fact that the lawsuit was used as a means to obtain an allegedly fraudulently induced settlement does not act as a bar to a separate action for fraud. Res judicata will not bar such an action because the fraud is not a basis of the previous decision. Consequently, under the limited standard of review for motions under MCR 2.116(C)(8), we believe the trial court erroneously granted summary disposition in this case. In light of our conclusion that summary disposition should not have been granted, we need not address the merits of plaintiffs’ issue concerning amendment of their complaint. Likewise, the issues defendants have raised in Docket No. 131543, concerning the trial court’s decision to deny costs, sanctions, and attorney fees for improper venue and frivolous pleadings need not be reached at this time. Because the trial court never addressed the issue of venue and we believe the decision to grant summary disposition was wrong, we do not believe at this time defendants have any basis for seeking sanctions for frivolous pleadings. Affirmed in part, reversed in part, and remanded for additional proceedings. We do not retain jurisdiction. Ross v Preston, 292 NY 433; 55 NE2d 490 (1944) (the court saying that in such a case the entry of a judgment is merely an incident of the fraud which has been perpetrated outside the action, and the reason that the judgment settling the claim does not preclude proof of the antecedent fraud is that the trial and judgment are only a step in the consummation of the antecedent fraud), reh den 293 NY 664; 56 NE2d 258 (1944); Gould v Cayuga Co Bank, 99 NY 333; 2 NE 16 (1885); Verplanck v Van Buren, 76 NY 247 (1879).”

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Per Curiam. The people appeal as of right from an August 28, 1990, order dismissing the information charging defendant with second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). We reverse. Pursuant to a plea agreement, defendant attempted to plead guilty of fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5). During the plea procedure, defendant mentioned his attempt to obtain counseling regarding the sexual conduct underlying the charge. Defense counsel explained that the abuse was reported by the counseling agency pursuant to the Child Protection Law, MCL 722.623; MSA 25.248(3), and that defendant was arrested shortly after the report was made. The trial court adjourned the proceeding, noting it believed there was a recent case on point and requesting the parties to apprise the court of it. Thereafter, defendant filed a motion to dismiss based on People v Farrow, 183 Mich App 436; 455 NW2d 325 (1990), the case referred to by the trial court. In Farrow, a panel of this Court held that under facts similar to those presented here — an investigation into the defendant’s criminal sexual conduct instigated after the defendant sought counseling and was informed that his treatment would remain confidential — sufficient state action was involved to support the defendant’s due process claim. Farrow challenged his prosecution, alleging confidential information had been illegally disclosed and that the use of that information against him violated public policy and his right to due process of law. The trial court granted defendant Farrow’s motion to dismiss, determining prosecution would frustrate the purpose of the Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq., and would violate the principles of fundamental fairness upon which the right to due process rests. The prosecution appealed the dismissal but limited its argument to a claim that due process was improperly invoked because no state action was involved. This Court rejected the prosecution’s argument concerning state action and, noting the prosecution’s failure to challenge the trial court’s due process analysis, affirmed the dismissal of the charges against Farrow. The trial court in this case, relying on the opinions of both the lower court, and this Court in Farrow, granted defendant’s motion to dismiss. The prosecution now appeals, claiming fundamental fairness does not require that a defendant who initiates counseling and receives false assurances of confidentiality be granted complete immunity from prosecution where the investigation into the defendant’s conduct stems from information divulged during counseling and later reported pursuant to MCL 722.623; MSA 25.248(3). We agree. As previously noted, this Court in Farrow did not address that portion of the lower court’s deci sion dealing with the broad notion that a due process violation may be premised on a generalized idea of fair play without regard to the more specific questions involved in due-process analysis such as whether there were any procedural defects or arbitrary or unreasonable state action. A review of the lower court opinion in Farrow reveals an analysis that, when stripped to its essentials, consists of nothing more than the well-known proposition that the state must deal fairly with a defendant and the lower court’s apparent but unstated and unexplained conclusion that Farrow was not treated fairly. A proper analysis of the issue must begin with the identification and examination of the conduct on which defendant bases his due process claim. Although defendant provided the lower court little information and argument in support of his motion, we will assume, because both defendant and the lower court relied exclusively on the Farrow case, that the basis of defendant’s complaint, like that of Farrow’s, arises from the reporting of what was believed to be confidential information by the counseling agency. In short, defendant and the trial court find "unfair” the fact that on the basis of "confidential” information voluntarily provided by the defendant to the counselor, the agency filed a report with the Department of Social Services indicating defendant was suspected of abusing his stepdaughter. Thus, in effect, defendant is challenging the mandatory reporting requirement set forth in § 3 of the Child Protection Law on grounds that the reporting is generally "unfair” when a defendant voluntarily seeks help and is contrary to public policy because it will dissuade persons such as defendant from seeking help and thus hinder the discovery and removal of children from homes where they are abused. This argument overlooks the fact that public policy issues are best addressed by the Legislature. Given enactment of the reporting requirement, as well as the section abrogating any legally recognized privileged communications except those between attorney and client, MCL 722.631; MSA 25.248(11), it appears the Legislature found the public policy arguments, supporting general detention, and thus likely prosecution, MCL 722.623; MSA 25.248(3), more compelling than those promoting self-reporting and self-sought treatment. Additionally, this Court has already upheld the validity of the statute’s reporting requirement in the face of various constitutional challenges. People v Cavaiani, 172 Mich App 706; 432 NW2d 409 (1988). The validity of the reporting requirement and the concomitant abrogation of the privilege applicable to the communications at issue here already having been settled, the only area remaining for complaint by defendant is that the counseling agency failed to inform him of its duty to report under the statute and thus improperly assured him that his treatment would remain confidential. Thus, defendant is claiming he was harmed by the counselor and agency’s handling of their obligation to report under the statute. Although we agree that the agency erred in failing to inform defendant of its duty to report suspected child abuse when specifically questioned by defendant regarding the confidentiality of his treatment, we do not find any support for defendant’s proposed remedy — immunity from prosecution for criminal acts of sexual abuse committed against his stepdaughter. Because defendant’s complaint arises from the mishandling of the reporting requirements of the statute, we look to the statute itself to determine defendant’s remedy. It appears the Legislature anticipated that problems would arise both with those reporting and those being reported under the statute. Thus, in § 5, the Legislature set forth the parameters of the reporting person’s liability arising from acts done pursuant to the statute. Defendant must find his remedy therein. We find no support for the trial court’s holding defendant absolutely immune from prosecution on the basis of some generalized notion of fairness. There was no egregious conduct. The information reported was neither coerced nor solicited from defendant, but was given voluntarily. Dismissal of the information charging defendant was improper. We note, however, that a separate analysis must be applied when addressing whether any statements made by defendant to the counselor are admissible at defendant’s criminal trial. Section 11 abrogates all legally privileged communications only with regard to child protective proceedings and does not otherwise affect privileges with regard to criminal proceedings. Moreover, use of defendant’s statements as evidence against him in a criminal prosecution under the facts presented herein may well provide a better basis for defendant’s generalized due process claim. We decline to fully address this issue because the trial court’s premature dismissal of the case prevented the case from proceeding to that point. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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Per Curiam. Defendant pled guilty to a charge of assault with intent to rob being armed, MCLA 750-.89; MSA 28.284. Prior to sentencing the defendant moved to withdraw his plea. The trial court denied the motion and we reverse. While a motion to withdraw a guilty plea is addressed to the trial court’s discretion, that discretion should be exercised liberally when the motion is made before sentencing and is accompanied by an assertion of innocence. People v Bencheck, 360 Mich 430 (1960); People v Henley, 36 Mich App 672 (1971). In this case the defendant’s motion was made before sentencing and he did assert his innocence. In addition, the record shows that while the defendant was questioned in some detail on a number of things the defendant,, himself, never pled guilty. The plea was entered by his attorney. Under GCR 1963, 785.3, and MCLA 768.35; MSA 28.1058, it is the defendant who must plead. See People v Barrows, 358 Mich 267 (1959); People v Head, 31 Mich App 491 (1971). The transcript of the arraignment and the plea also contain several statements by the defendant that could be construed as protestations of innocence. See People v Merhige, 212 Mich 601 (1920). Reversed and remanded.

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Memorandum Opinion. Defendant pled guilty to the charge of breaking and entering, was sentenced to a term of not less than four nor more than ten years, and now appeals. An examination of the record and brief discloses no error. Affirmed. MCLA 750.110; MSA 28.305.

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Per Curiam. On December 2,1965, plaintiff Eddie Chaffin was working as an automatic press operator for defendant Grand Eapids Metalcraft. On that date plaintiff reached into a press to “catch a die” and the “ram” came down crushing his right hand. Plaintiff’s hand was badly damaged with his right thumb partially being torn off and with his index finger being partially damaged. Surgery was performed and plaintiff’s right thumb was removed, including the “metacarpal bone”. Plaintiff claimed workmen’s compensation for the loss of a thumb under MCLA 412.10(a)(1); MSA 17.160(a) (1), which amounted to 65 weeks and which was voluntarily paid by the defendant. Next, plaintiff claimed workmen’s compensation for the industrial loss of his hand, MCLA 412.10(a) (12); MSA 17.160(a) (12), and after a hearing, the referee awarded compensation for 215 weeks. The Workmen’s Compensation Appeal Board affirmed the referee’s finding by a 4-2 vote. Defendant sought leave to appeal from the Board’s decision which was granted by this Court. On appeal, defendant claims that the Workmen’s Compensation Appeal Board committed reversible error in ruling that the plaintiff had suffered the specific loss of a hand. Defendant asserts that the plaintiff has not suffered the specific loss of his hand. In so arguing, defendant cites Hutsko v Chrysler Corp, 381 Mich 99 (1968), for the proposition that the loss of the hand must be equal to amputation. Defendant maintains that the testimony in the instant case does not support the conclusion that plaintiff has suffered the loss of his hand equal to amputation. Hutsko v Chrysler Corp, supra, held that where there is a specific scheduled loss, but no actual physical loss of the member, the test shall be (pp 102, 103, 104): “There must be that total incapacitating loss of use which renders the organ or member industrially useless for any type of work, * * * . The test is the degree of loss as compared with the actual physical loss by destruction or amputation. * * * Tn simple substance then we construe a specific schedule loss to be that loss of industrial use or function equal to actual physical loss as by destruction or amputation.” Furthermore, findings of fact by the Appeal Board will not be reversed by courts on appeal if the findings of fact are supported by the record, in the absence of fraud. Rea v General Electric Co, 35 Mich App 573 (1971). In the instant case, the findings of fact are supported by the record and the test in HutsJco is met. Therefore, this Court affirms the decision of the Workmen’s Compensation Appeal Board. See also Rea, supra. Affirmed. Costs to appellee.

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Quinn, J. A jury convicted defendant of breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. He was sentenced and he appeals. After claim of appeal was filed but before defendant’s brief was filed, his appointed appellate counsel was relieved of the assignment at the request of defendant. The trial court declined defendant’s request for new appellate counsel, and defendant’s brief was filed in propria persona. Our review of the record convinces us that the three issues raised by defendant are so unsubstantial that discussion of them is not required. Review does disclose two errors committed by the prosecuting attorney at trial, which would have been apparent to adequate appellate counsel but not to defendant. Both of the errors are reversible errors under prior decisions of this Court and both relate to the question of fair trial, and one relates to a violation of a constitutional right of the defendant. Because of this and the possible infringement of defendant’s right to appellate counsel, we depart normal procedure and consider issues not raised on appeal. During the presentation of the people’s case, the prosecuting attorney twice asked the deputy sheriff who investigated the case and arrested defendant, if the latter made any statement when arrested. The deputy sheriff responded in the negative to each question. During final argument, the prosecuting attorney stated: “The officer, Eobert Swackhamer, testified that Lester was involved in this and was arrested and properly warned and made no statement.” Defendant’s constitutional right to remain silent was violated, People v Gisondi, 9 Mich App 289 (1967). During cross-examination of defendant, the prosecuting attorney twice asked defendant about prior arrests, not arrests and convictions. The latter inquiry is proper; the former is not, People v Brocato, 17 Mich App 277, 302 (1969). Eeversed and remanded for a new trial. All concurred.

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Per Curiam. Appellant, a practicing attorney, was appointed by the circuit judge to undertake the defense of an indigent criminal defendant, Lester Hutchinson. Appellant refused to accept the appointment alleging that to require him to accept such an appointment amounted to an unconstitutional invasion of a lawyer’s right to due process and equal protection, amounted to involuntary servitude, and denied the defendant adequate assistance of counsel. The trial court, upon appellant’s refusal to accept the appointment, held appellant in contempt of court. From that order and judgment of contempt he appeals. The question before this Court is limited to the constitutionality of the criminal appointment system. MCLA 775.16; MSA 28.1253 provides that the presiding judge of the circuit court shall appoint an attorney for the defense of an indigent criminal defendant. The power of the court to require an attorney to accept such an appointment has been vested in the courts from the very dawn of the Anglo-American judicial tradition. For a historical development of the concept of requiring attorneys to render service to indigent criminal defendants, see the appendix to United States v Dillon (Petition of Strayer), 346 F2d 633 (CA9, 1965). Although there is no Michigan case directly on point, it has been almost universally held that, even in the absence of any compensation, requiring practicing attorneys to undertake the defense of indigent criminal defendants does not violate the attorney’s constitutional rights. See 21 ALR3d 819, §§ 2-4, pp 821-828. We would also direct attention to State v Rush, 46 NJ 399; 217 A2d 441; 21 ALR3d 804. (1966), in which identical assertions were found to lack persuasive substance. The Supreme Court in Powell v Alabama, 287 US 45, 73; 53 S Ct 55, 65; 77 LEd 158,172 (1932) held: “The duty of the trial court to appoint counsel under such circumstances is clear, as it is clear under circumstances such as are disclosed by the record here; and its power to do so, even in the absence of statute, can not be questioned. Attorneys are officers of the Court, and are bound to render service when required by such an appointment.” Affirmed. No costs, a public question being involved.

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ON REHEARING Before: Brennan, P.J., and Michael J. Kelly and D. F. Walsh, JJ._ Per Curiam. Defendants, the Department of Natural Resources, Holly Disposal, Inc., and William H. Leoni, Sr., previously appealed as of right to this Court from a June 28, 1989, permanent injunction barring Holly Disposal and Leoni from further construction of a solid waste landfill and precluding the dnr from issuing a construction permit for the landfill to Holly Disposal, Inc. We held that Mt. Holly Ski Area, Inc., did not have to exhaust its administrative remedies before bringing its action pursuant to the Environmental Protection Act (mepa). We further found that the permit issued by the dnr that allowed construction of the landfill was invalid because the dnr failed to give the requisite notice concerning the third application for a construction permit. As a result, we remanded the case to the dnr to issue public notice of Holly Disposal’s permit application. In addition, we held that because the permit was invalid, the trial court never should have reached the issue whether a permanent injunction should issue. Therefore, we vacated the permanent injunction. 189 Mich App 581; 473 NW2d 778 (1991). Plaintiffs subsequently moved for rehearing, arguing that this Court erred in holding that the permanent injunction issued by the trial court in the mepa action was necessarily invalid because the permit issued by the dnr for construction of the landfill was invalid. Plaintiffs argued that the mepa action brought by Mt. Holly is independent from the application for a permit to construct and operate a landfill. We agreed and granted rehearing limited to reconsideration of this Court’s vacation of the permanent injunction. On rehearing, we consider the merits of the permanent injunction granted by the trial court. We again vacate the permanent injunction. This Court reviews de novo actions brought under the mepa. Portage v Kalamazoo Co Road Comm, 136 Mich App 276, 279; 355 NW2d 913 (1984). However, the trial court’s findings of fact will not be overturned unless they are clearly erroneous or unless the reviewing court is convinced it would.have reached a different result had it occupied the bench at trial. Id. The grant or denial of an injunction is within the sound discretion of the trial court. Dafter Twp v Reid, 159 Mich App 149, 163; 406 NW2d 255 (1987). Injunctive relief is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at law, and there is real and imminent danger of irreparable injury. Id., p 163, citing Wexford Co Prosecutor v Pranger, 83 Mich App 197, 205; 268 NW2d 344 (1978). Defendants contend that a prima facie case was not established because the trial court failed to make the dual inquiry mandated. To determine whether a plaintiff has established a prima facie case under the mepa, the trial court must consider whether a natural resource was involved and whether the effect of the activity on the environment rose to the level of impairment to justify the court’s injunction. Portage, supra, p 280. There is no question that a natural resource was involved in this case. Whether the impact of the activity rises to the level to justify the court’s injunction is a more difficult question to answer. The Michigan Supreme Court has recognized that virtually all human activities can be found to adversely affect natural resources in some way. Id., p 281, citing West Michigan Environmental Action Council v Natural Resources Comm, 405 Mich 741, 760; 275 NW2d 538 (1979). However, a court is not empowered to enjoin any conduct that does not rise to the level of an environmental risk proscribed by the mepa. Portage, supra, p 281. The applicable standard, "has or is likely to pollute,” is a limitation as well as a power. Id., p 282, citing Oscoda Chapter of PBB Action Committee, Inc v Dep’t of Natural Resources, 403 Mich 215, 233; 268 NW2d 240 (1978). In this case, it is arguable that Mt. Holly established a prima facie case of the likelihood of pollution. Mt. Holly’s witnesses testified that the landfill would be located on porous sand and gravel. The witnesses testified that, eventually, leachate from the landfill would percolate through the landfill liner, through the sand and gravel, and down to the ground water and contaminate it because a recharge area was involved. Mt. Holly’s experts testified that there was insufficient data to determine whether there was an aquiclude, or barrier to prevent movement of leachate to the ground water. Mt. Holly’s witnesses testified that plaintiffs were located below the landfill and that the groundwater, filled with leachates from the landfill, would flow in plaintiffs’ direction. Once a plaintiff establishes a prima facie likelihood of pollution, the burden of proceeding shifts to the defendant. MCL 691.1203; MSA 14.528(203); Ray v Mason Co Drain Comm’r, 393 Mich 294, 311; 224 NW2d 883 (1975). However, the burden of proof stays with the plaintiff, and once the defendant rebuts the prima facie case of the likelihood of pollution, the burden of going forward with the evidence shifts back to the plaintiff. Id. The nature of the evidence necessary to rebut the plaintiff’s showing varies. Id., pp 311-312. Defendants’ expert witness Kunkle testified that once the contaminants reached the water table they would move horizontally instead of vertically as Mt. Holly’s expert had testified, because he believed that the area was a transitional or discharge zone, as opposed to a recharge area. Kunkle believed that any contaminants would be discharged into a marsh area rather than the ground water and plaintiffs’ well water. Kunkle also claimed that the liner in the new landfill design was approximately ninety percent effective in preventing leakage. Kunkle testified that there is no scientific engineering design currently on the market that could completely guarantee that leachate would not contaminate the ground water. We find that the trial court abused its discretion in granting the injunction. Dafter Twp, supra. At first glance, the case appears to be a battle between the experts. However, we find that there was insufficient evidence to justify the grant of a permanent injunction. Mt. Holly’s main expert, Dr. Mozola, testified that there was insufficient data to determine if an aquiclude existed beneath the landfill site to prevent ground water contamination. He further testified that, unless specifically tested, it would be impossible to state, with any degree of certainty, the extent to which surrounding wells would draw contaminants from under the site because of the nature of the soils. The trial court noted that there had been no testimony regarding whether the levels of leachate reaching the domestic wells would be toxic. There is no indication regarding the impact the leaching would have under either design of the landfill. The trial court emphasized in its opinion that there was insufficient on-site testing and data upon which the parties’ main experts could base their opinions and that their opinions were based on speculation. We also note that Mt. Holly’s experts did not comment with regard to the new landfill design proposed by defendants and that there is no testimony regarding whether the allegedly reduced amount of leachate from the new design would result in a likelihood of pollution. Accordingly, we find that there was insufficient evidence upon which to grant the harsh remedy of a permanent injunction and that the trial court abused its discretion in doing so. Injunction vacated. Under MCL 691.1202; MSA 14.528(202) and MCL 691.1204; MSA 14.528(204), a party may bring an action for permanent equitable relief against any other party to protect the air, water, and other natural resources from pollution, impairment, or destruction. Leachate is "the liquid that has percolated through soil or other medium.” Webster’s Third New International Dictionary, Unabridged Edition (1965). Recharge is the replenishment of the ground water reservoir by the addition of water. Hamblin, The Earth’s Dynamic Systems (Minneapolis: Burgess Publishing Co, 3d ed, 1982) p 510. An aquiclude is "a geologic formation or stratum that confines water in an adjacent aquifer.” Webster’s Third New International Dictionary, Unabridged Edition (1965).

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ON REMAND Before: Hood, P.J., and Shepherd and KN. Sanborn, JJ. Shepherd, J. Defendant appeals a December 18, 1989, order of the Kent Circuit Court affirming a March 28, 1989, order of the 61st District Court granting plaintiffs’ motion for summary disposition pursuant to MCR 2.116(0(10) and denying defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). This Court initially denied defendant’s application for leave to appeal in an order dated April 5, 1990 (Docket No. 124456). On January 29, 1991, the Supreme Court remanded the case to us for consideration as though leave to appeal had been granted. Wolfe v Employers Health Ins Co, 437 Mich 895 (1991). We reverse and grant summary disposition in favor of defendant. Plaintiffs initially filed a complaint for declaratory relief in the district court, requesting the court to determine whether defendant was liable on its health insurance policy for expenses incurred in connection with Michelle Wolfe’s pregnancy. On February 16, 1987, Michelle Wolfe was informed by her physician that she was pregnant. On May 1, 1987, her husband, Scott Wolfe, was terminated from his employment with B & B Screw Machine for lack of work. Subsequently, the former employer notified defendant to cancel plaintiffs’ health insurance coverage effective April 30, 1987. Defendant acceded to this request. In June, defendant offered plaintiffs an individual conversion policy as required by the original insurance policy. Plaintiffs refused defendant’s offer of a conversion policy, because they claimed that they could not afford the higher premiums. The plaintiff’s child was born in September 1987. The total expenses of the childbirth were $4,305.75. Despite plaintiffs’ repeated demands, defendant refused to pay the expenses. A motion for summary disposition based upon a failure to state a claim upon which relief can be granted, MCR 2.116(C)(8), tests the legal sufficiency of a claim by the pleadings alone. Parkhurst Homes, Inc v McLaughlin, 187 Mich App 357, 360; 466 NW2d 404 (1991). The court must accept as true all well-pleaded allegations in support of the claim, as well as any reasonable inferences or conclusions that can be drawn from the facts. Ashley v Bronson, 189 Mich App 498, 501; 473 NW2d 757 (1991). The motion should be granted only if the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). A motion for summary disposition under MCR 2.116(0(10) may be granted when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A motion for summary disposition based upon the lack of a genuine issue of material fact tests whether there is factual support for the claim. Petaja v Guck, 178 Mich App 577, 578; 444 NW2d 209 (1989). Giving the benefit of reasonable doubt to the nonmoving party, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Id. The party opposing the motion has the burden of showing, by affidavits or other documentary evidence, that a genuine issue of disputed fact exists. Mirza v Maccabees Life & Annuity Co, 187 Mich App 76, 80; 466 NW2d 340 (1991). Both parties rely upon Providence Hosp v Morrell, 431 Mich 194; 427 NW2d 531 (1988), a case in which an insurance company terminated coverage and left a pregnant woman uninsurable. There, United Fidelity Insurance Company issued a group health insurance policy to Morrell Builders, which was owned by Russell Morrell. Both Russell Morrell and his wife, Norah, were covered under the policy. In May 1982, United Fidelity notified Morrell Builders that the group policy would be can-celled on July 1, 1982. At the time of termination, Norah Morrell was pregnant. She gave birth in September 1982 at Providence Hospital. Subsequently, United Fidelity refused to pay the hospital expenses, relying upon the previous cancellation of the policy. When Russell Morrell refused to pay, the hospital sued him, causing Russell Morrell to file a third-party suit against United Fidelity. Both Morrell and United Fidelity moved for summary disposition in district court. The district court granted summary disposition in favor of Morrell, and the circuit court affirmed. After granting leave to appeal, this Court affirmed in an opinion per curiam, Providence Hosp v Morrell, 160 Mich App 697, 702; 408 NW2d 521 (1987), stating: Therefore, we hold that where, as here, an insured develops a condition during the life of a health insurance policy and that policy is subsequently cancelled or terminated by the carrier, the carrier remains liable for those expenses which arise from that condition where those expenses would be covered by the policy had it not been terminated. The Supreme Court partially affirmed the judgment of this Court, agreeing with this Court that public policy may override an insurance policy provision allowing the insurer to terminate coverage. In Morrell, the Supreme Court held that, as a matter of public policy, the health insurer remains liable for pregnancy-related expenses that are incurred after the insurer terminated the policy if the pregnancy occurred while the policy was effective. The Supreme Court deemed it unwarranted to extend this principle to cases not involving pregnancy. Plaintiffs argue that the public policy implicated in Morrell applies to the present case. Plaintiffs assert that if a pregnancy occurs while a health insurance policy is in effect, public policy requires the insurance company to pay pregnancy-related expenses that ordinarily would have been covered had the insurance policy not been terminated. Plaintiffs contend that under Morrell it makes no difference who cancels the coverage because the public policy of the State of Michigan is to protect the family’s decision to have a child and their reasonable expectations that their medical expenses would be covered. Moreover, plaintiffs maintain that their refusal to purchase an individual conversion policy does not alter the public policy implicated in Morrell, because there is no requirement that plaintiffs be rendered uninsurable upon the cancellation of the health insurance policy. Further, plaintiffs assert that the high cost of the conversion policy violated the public policy enunciated in Morrell. We decline to extend Morrell to the facts of this case where the insurance policy covering Michelle Wolfe was cancelled pursuant to the instructions of her husband’s employer. Contrary to plaintiffs’ construal, the holding in Morrell does not stand for the proposition that any termination of an insurance policy covering a pregnant woman is automatically against public policy. Rather, the holding in Morrell is limited and applies only to the cancellation of a policy initiated by the insurance carrier. In the present case, defendant cancelled coverage in response to the request by plaintiff’s employer and then offered a conversion policy to plaintiffs, which they refused. Unlike the insurance carrier in Morrell, defendant did not initiate the termination of coverage. Moreover, given that plaintiff’s employer ceased coverage for its termi nated employee and stopped paying premiums, defendant was only honoring its obligations under its contract with plaintiffs employer to terminate a policy. Thus, we hold that the public policy implicated in Morrell does not apply to the cancellation by plaintiff’s employer. Because Morrell does not apply to a cancellation requested by the employer, the lower courts erred in finding that defendant was liable for plaintiffs’ pregnancy-related expenses as a matter of public policy. In addition, we believe that the lower courts erred in extending the public policy exception enunciated in Morrell to include a person who is not rendered uninsurable as a result of the termination of a medical insurance policy. Both this Court and the Supreme Court in Morrell were concerned that the termination of an insurance policy by the insurance carrier would render a pregnant woman uninsurable. Morrell, supra, p 199. Here, plaintiff Michelle Wolfe was not rendered uninsurable as the result of the termination of the health insurance policy, because, as plaintiffs conceded, defendant offered them an individual conversion policy to cover the anticipated pregnancy-related expenses. Given that plaintiffs refused defendant’s conversion policy offer, Michelle Wolfe was not uninsurable at the time the insurance policy was cancelled. Therefore, the public policy exception in Morrell does not apply to them. The lower courts also erred in finding that the allegedly high costs of the individual conversion policy violated the public policy implicated in Morrell. In this case, the cost of the conversion policy offered to plaintiffs was between $342 and $372 a month. Under the group insurance plan, plaintiffs employer had been paying $137 a month for this insurance coverage. Notwithstanding the fact that the individual conversion policy was offered at a higher rate than that of the employer’s group policy, we note that there was no factual or legal basis to justify the lower courts’ determination that the higher cost of the conversion policy by itself violated the public policy invoked in Morrell. Had there been factual allegations coupled with expert opinion that the increased rates have no reasonable relationship to the change in risk that accompanies an individual, as opposed to a group, policy, we might have been faced with a different issue. In view of the fact that defendant did not terminate the original insurance policy or refuse to offer a conversion policy, we must conclude that defendant has no liability to pay for the pregnancy-related expenses incurred by Michelle Wolfe. Accordingly, we reverse the grant of summary disposition in favor of plaintiffs pursuant to MCR 2.116(0(10). Because plaintiffs failed to state a claim on which relief may be granted, we grant summary disposition for defendant pursuant to MCR 2.116(C)(8). Reversed.

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Memorandum Opinion. Plaintiffs instituted an action to recover for damages resulting from an automobile-bicycle accident; the jury returned a verdict of no cause of action. An examination of the record and briefs discloses no error depriving plaintiffs of a substantial right. Affirmed.

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Targonski, J. On June 10,1965, while on duty as an attendant at a gasoline service station in the City of Saginaw, one Sakie Neymeiyer was shot and killed by the defendant. At trial in Saginaw County Circuit Court, two other attendants at the same service station, eyewitnesses to the shooting, testified that the defendant had attempted to rob the station, that in defiance the deceased kicked the defendant, and that while the defendant was backing out the door, he fired a single shot. Defendant admitted shooting the deceased, but denied any involvement in an armed robbery. Defendant testified that he had entered the service station to use the restroom, that he drew his gun only when attacked by the deceased, and that the gun discharged when kicked by the deceased. Defendant was subsequently found guilty by a jury of first-degree murder. MCLA 750.316; MSA 28.548. We then granted defendant’s application for delayed appeal. Defendant raises a number of issues here. First, defendant contends that the trial judge was guilty of prejudicial misconduct. More specifically, defendant claims that several comments made by the trial judge in the presence of the jury and frequent ex tensive interrogation of witnesses by the judge constituted such interference as to deny defendant a fair trial. Defendant concedes that timely objection was not made at the trial, but claims that the interference by the judge resulted in such “manifest injustice” that this Court may take cognizance of the errors. We agree. As a general rule, failure to make timely objection precludes appellate review. People v McIntosh, 34 Mich App 578 (1971). However, since appellate courts cannot condone manifest injustice, this Court can react, even in the absence of timely objection, to error which resulted in a denial of a fair trial. People v Baker, 7 Mich App 471 (1967); People v Bedsole, 15 Mich App 459 (1969). This is particularly appropriate here, where any objection had to be made to the judge relative to his own conduct. The transcript of defendant’s trial contains approximately 300 pages of testimony. Of these 300 pages, approximately 55 pages are devoted to comments by the trial judge and interrogation by him of various witnesses. In determining the effect of comment and interrogation by the trial judge, the applicable test is whether what occurred prevented defendant from having a fair and impartial trial. People v Cole, 349 Mich 175 (1957); People v O’Hara, 278 Mich 281 (1936). In matters of trial conduct the trial judge has great power and wide discretion. People v Cole, supra; People v Young, 364 Mich 554 (1961). But even though the trial judge has the power to participate properly in the questioning of witnesses, to control the conduct of witnesses, and the conduct of attorneys in his courtroom, People v Cole, supra, this power is not unlimited. People v Wilson, 21 Mich App 36 (1969). If an examination of the record reveals that the veil of judicial impartiality was pierced by the trial judge, the case must be reversed. People v Wilson, supra; People v Bedsole, supra. Despite the absence of a fixed rule on what a trial judge may or may not say, People v Withrow, 26 Mich App 679 (1970), the courts of this State have previously enunciated the standard of conduct expected of trial judges: “ * * * a judge before whom a jury case is being tried should avoid any invasion of the prosecutor’s role.” People v Cole, supra, 196. “A judge may properly intervene in a trial of the case to promote expedition, and prevent unnecessary waste of time or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.” Canons of Judicial Ethics, Canon 15, quoted in People v Wilson, supra, 39. Upon examination and review of the complete record, we are convinced that the trial judge’s frequent comments and lengthy interrogations impaired “that balance of judicial impartiality necessary to a fair hearing”. People v Wilson, supra. Even though in some instances here the trial judge was merely exercising his right to question witnesses for the purpose of clarifying their testimony, nevertheless the cumulative effect of his questioning and commenting overstepped the permissible bounds. A primary concern for jury consideration in this case was whether to believe the defendant’s version of the shooting or that related by the two attendants. During the prosecution’s examination of one of the two attendants the following took place: “Q. (by the prosecution): How old are you. now? “A. Nineteen. “The Court: You mean all your life up to now? “A. Yes. “The Court: You still have some to live? “A. Yes. “The Court: You hope, huh? “A. Yes. # # # “Q. Are you employed at the present time? “A. Yes, I am. “Q. Where is this? “A. Saginaw Steering Gear. * * # “Q. Is the work hard? “A. Pardon? “Q. Is the work hard? “A. Bad enough. “The Court: It’s different than when you used to work for us? “A. Yeah. “The Court: Used to be our sidewalk shoveler and yard raker, isn’t that right? “A. Yes. “The Court: He lives in a good neighborhood. * # # “Q. What schools did you go to? “A. Do you want all of them or just high school? “Q. Well, did you finish high school? “A. Yes I did. I went to Saginaw High. I also went to Central Junior. “The Court: And to Longfellow? “A. Yes, and John Moore, too. “The Court: I see, they have got a new Longfellow now, you know? “A. Yes. “The Court: We’re getting up in the world.” The comments and questions by the trial judge in the presence of the jury, that he personally knew one of these attendants and that the attendant came from a “good neighborhood” and had worked for the judge, can only be construed as being prejudicial to the defendant. In effect, the judge was clearly lending support to the credibility of one of the two eyewitnesses, when it is the sole province of the jury to determine the credibility of witnesses. People v Padgett, 306 Mich 545 (1943). Further, the record indicates that the trial judge assumed the role of the prosecutor at various times, materially interfered with cross-examination by defense counsel, and made supposedly humorous comments which could have been interpreted by the jury as belittling the defense. Clearly, this is not a ease where the questioning and comments by the trial judge were limited in scope, material to the issues in the case, and did not communicate to the jury any opinion that the trial judge may have had regarding these matters, so as to escape prejudicial error. People v Piscunere, 26 Mich App 52 (1970). But unfortunately, this is a situation where the trial judge, seemingly well-meaning in his exuberant pursuit to uncover the truth, displayed partiality that quite possibly could have influenced the jury to the detriment of the defendant’s case. Therefore, because of the aforementioned reasons, we have no other recourse but to find that the defendant was denied a fair and impartial trial despite the evidence presented. People v Smith, 363 Mich 157 (1961); People v Wilson, supra. We are not unmindful of the fact that similar conduct involving the same trial judge as in this case was treated in similar fashion by the Supreme Court in People v Smith, supra. As this case is re versed on the foregoing grounds, we do not feel it appropriate to evaluate defendant’s other claims of error at this time. Reversed and remanded. All concurred.

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Per Curiam. Plaintiff Mary Ann Dellaria was injured when the car she was driving on a favored road collided with defendants’ vehicle, travelling on a subordinate or inferior road, at an intersection. Although there was no obstruction to the view of either party for a distance of approximately one-half block before arriving at the intersection, plaintiff driver did not observe defendants’ vehicle until both cars were approximately 40 feet from the intersection. Since defendant Lottie Tessin, being faced with a stop sign, was under a duty to yield the right, of way at the intersection, pursuant to MCLA 257.649; MSA 9.2349, the court below instructed the jury that defendants were negligent as a matter of law and that such negligence constituted a proximate cause .of defendants’ injuries. This ruling has hot been challenged. The issue of plaintiff driver’s contributory negligence was left to the jury, and they returned a verdict of no cause of action. Plaintiffs’ motion for a judgment notwithstanding the verdict and for a new trial on damages was denied by the trial court. On appeal, plaintiffs contend that the trial court was in error in failing to instruct the jury that plaintiff driver'was not guilty of contributory negligence as a matter of law. We have often stated that the care exercised by the plaintiff at the time of an injury is a question for the jury to determine. Thompsons Essex Wire Co, 27 Mich App 516 (1970). Where there is uncertainty as to this issue it remains a matter of fact for their consideration. Detroit & M R Co v Van Steinburg, 17 Mich 99 (1868). Where, as here, there is some question as to whether the favored driver failed to exercise due care by failing to notice defendants’ vehicle until both cars were approximately 40 feet from the intersection although her view was unobstructed for a considerably longer distance, the question of contributory negligence is one for the trier of fact. Tucker v Gillette, 6 Mich App 210 (1967); Sattiewhite v De La Cuadra, 31 Mich App 117 (1971). Plaintiffs also contend that the trial court’s instructions to the jury were misleading and erroneous. Beading the instructions as a whole, we have concluded that they adequately and fairly informed the jury on the applicable law. Bauman v Grand T W R Co, 18 Mich App 450 (1969); Huntley v Motor Wheel Corp, 31 Mich App 385 (1971). Affirmed.

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Brennan, J. Claimants appeal as of right from an August 2, 1990, judgment of forfeiture of property seized under a controlled substances provision of the Public Health Code, MCL 333.7521; MSA 14.15(7521), entered by Wayne Circuit Judge Michael J. Talbot. We affirm in part and reverse in part. The record reveals that, in 1988, claimant Robert Hawkins pleaded guilty in Detroit Recorder’s Court of attempted possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v); MCL 750.92; MSA 28.287. The case was adjudicated under MCL 333.7411; MSA 14.15(7411) and he was placed on probation. On the basis of the assets Hawkins disclosed in his probation report, the Wayne County prosecutor’s office became suspicious that he was living well beyond his legitimate income as a retired Chrysler factory worker. The forfeiture unit of the Wayne County Prosecutor’s office supplied this information to the Oakland County Narcotics Enforcement Team (net), which began investigating Hawkins. This investigation ceased after surveillance by net as well as the State Police revealed nothing unusual except for heavy traffic in and out of the claimants’ house and the presence of many expensive automobiles. Subsequently, the State Police referred an informant named Randy Ulmer to West Bloomfield Police Officer Jerome Sharpe. Ulmer indicated that he had seen a large amount of cocaine in the basement of claimants’ house. On the basis of this information, net and Sharpe executed a search warrant for claimants’ West Bloomfield home on May 9, 1989. The search revealed, among other items, weapons, a suspected drug ledger, and a great amount of cash, some of which had a residue of cocaine. A specially trained canine unit also indicated that traces of cocaine were present in areas throughout the house and in one car belonging to the claimants. This search resulted in the present forfeiture proceedings, which were instituted on May 10, 1989. Before trial, the parties reached a comprehensive stipulation regarding the tracing of assets in this case. Robert Hawkins stated that he had worked for Chrysler Corporation for sixteen years. He further stated that he had owned rental properties in Detroit since he was nineteen years old, as well as a beer and wine store from 1978 to 1986. Hawkins explained that his income resulted from these sources plus some gambling profits and loans that he made. In addition, claimants alleged that they had received $2 million as the result of a personal injury lawsuit in the Macomb Circuit Court. The lawsuit allegedly stemmed from a 1983 incident when Margaret Wilson, an insurance agent from Chicago, became upset after Pamela Hawkins told her she was not interested in the insurance Wilson was selling. Wilson allegedly hit Pamela, who then fell over a banister and down some stairs. Claimants stated that Pamela was pregnant at the time and later had an abortion because she thought her doctor, Dr. Lall, told her that something may have been wrong with the fetus as a result of the fall. The Hawkinses filed a lawsuit against Wilson in the Macomb Circuit Court on October 11, 1985, and were represented in that suit by attorney Alvin Brazzell. They later settled the suit with Wilson for $2 million, a substantial amount of which was delivered in cash. Brazzell abruptly left his practice in February 1987 and, for reasons unknown to this Court, was incarcerated in a federal prison at the time of trial. The trial court found claimants’ lawsuit against Wilson to be nothing more than a money-laundering scheme. Judge Talbot ultimately ordered forfeiture of the West Bloomfield home, the cash found therein, jewelry, weapons, cars, a computer and printer, a boat, property located in Florida, and several different bank accounts, annuities, and life insurance policies. Most of the property forfeited was located in Oakland County. Claimants raise a number of issues on appeal. ISSUE i Claimants first argue that the court erred in ordering forfeiture of all the assets except for the Lincoln, the Tiffany, and the Bayliner boat because those are the only items covered by a seizure order or arrest warrant. Claimants contend that the trial court had no jurisdiction over nonseized assets and, therefore, those assets should have been returned to claimants. However, pursuant to MCL 333.7522(a); MSA 14.15(7522)(a), seizure without process may be made where it is incident to an arrest or a search warrant. Here, the previously issued search warrant included many of the items referred to by claimants. Therefore, those items did not need to be listed again on a seizure order. The property not included in the search warrant was subsequently seized with process by seizure orders and orders freezing assets. Consequently, the circuit court had jurisdiction to proceed with this case under § 7522. Claimants assert that the trial court erred in ordering forfeiture of an annuity policy despite the fact that it was never named in any filed complaint nor made the subject matter of a seizure warrant or order freezing assets. Contrary to claimants’ argument, a June 1, 1989, order freezing assets included two annuities. In addition, on the basis of the order freezing assets, settlement negotiations, and its seizure during the execution of the search warrant, it is clear that claimants had notice before trial that the asset was subject to forfeiture. Notice regarding the court’s alleged lack of jurisdiction with regard to the annuities should have been raised before trial. By leaving the matter to the time of trial, claimants waived jurisdiction of the policies to the court. Claimants argue that the trial court lacked jurisdiction over property located in Florida. We agree. Michigan courts have jurisdiction only over land situated within its territorial borders. MCL 600.751; MSA 27A.751; Stewart v Eaton, 287 Mich 466; 283 NW 651 (1939). Any complaint to forfeit claimants’ realty located in Florida should be filed with the Florida courts that have jurisdiction over that property. ISSUE II Claimants argue that the trial court erred in denying their motion to change venue to Oakland County because all the realty and personal property forfeited was located either in Oakland County or outside the State of Michigan. However, assuming the trial court did err in denying the motion, reversal is not warranted. Michigan’s venue provisions are nonjurisdictional. MCL 600.1601; MSA 27A.1601. ISSUE III Claimants argue that the court erred in its rulings with regard to several discovery matters. Claimants first argue that the trial court erred in denying basic discovery. For example, they state that the trial court erred in not requiring the people to answer an interrogatory requesting that the people set forth their various theories under which each item was claimed to be forfeitable. However, the people did respond, indicating that forfeiture was sought on theories that referred to the items as controlled substances proceeds, facilitators, or containers under MCL 333.7521; MSA 14.15(7521). The trial court properly found that the prosecutor could argue alternative theories. MCR 2.111(A)(2). In addition, claimants state that the court erred in not requiring the prosecutor to produce all documents concerning any criteria used by the prosecutor in bringing, prosecuting, or settling cases under the forfeiture act. We agree with the trial court that this information was not relevant. Accordingly, we find no abuse of discretion. Eyde v Eyde, 172 Mich App 49, 54; 431 NW2d 459 (1988). Moreover, we fail to see how claimants were prejudiced. MCR 2.613(A). Claimants next argue that the trial court erred in issuing for the people "secret” subpoenas with no notice to the claimants. Claimants refer to subpoenas that stated that "due to a continuing criminal investigation, notice of this Subpoena is not to be given to any named party.” One subpoena was issued to Pamela Hawkins’ doctor, Dr. Chitranjan Lall. Claimants argued that, as a result of this unfair tactic, they were foreclosed from asserting the doctor-patient privilege. Similar subpoenas were issued to First Federal of Michigan and Shearson, Lehman, Hutton without notice to claimants. Claimants contend that they were prejudiced in preparing for this case because they never received notice of these subpoenas. Claimants were entitled to notice of service of any discovery requests on witnesses. MCR 2.107(A); MCR 2.305(A)(1); MCR 2.306(B)(1). Such notice is necessary to any party before discovery may be had in order for the opposing party to assert any objection or move for a protective order to prohibit the production of any materials otherwise not subject to discovery. The conduct complained of was reprehensible. Nevertheless, we find that the action was not taken wilfully to prejudice claimants, but was taken for reasons involving the ongoing criminal investigation involving claimants. Further, Dr. Lall’s testimony was kept out of evidence at trial after claimants asserted the doctor-patient privilege. Therefore, no prejudice resulted in that regard. MCR 2.613(A). Further, claimants do not suggest that the prosecutor was not entitled to the information from First Federal of Michigan or Shearson, Lehman, Hutton, nor do they claim that they were prejudiced by the prosecutor’s receipt of the information. These subpoenas were utilized to supplement financial documents that were in the prosecutor’s possession as a result of the confiscation of records from claimants’ residence. Therefore, we find that reversal is not warranted on this basis. Claimants contend that the court erred in refus ing to require the people’s witnesses, including Randy Ulmer and various police officers, to respond to inquiries during deposition and trial regarding their backgrounds and addresses. Claimants argue that Ulmer was the only witness who allegedly had firsthand knowledge of a claimed violation of the Public Health Code by Robert Hawkins and that his credibility was at issue. Therefore, claimants argue that the information was relevant. We find that the trial court did not abuse its discretion in refusing to compel such discovery, because the line of inquiry was not relevant. Sucoe v Oakwood Hosp Corp, 185 Mich App 484; 462 NW2d 780 (1990). We note that the cases claimants cite are distinguishable because the claimants in this case had the names of the witnesses and could cross-examine them with regard to other information in order to determine their credibility. We fail to see how claimants were prejudiced as a result. See also People v Pleasant, 69 Mich App 322; 244 NW2d 464 (1976). Claimants argue that the trial court erred in not requiring the prosecution to identify and produce each and every document that it intended to offer in evidence at trial as well as other evidence of narcotics trafficking that would sustain forfeiture of the Florida property. The prosecution, however, indicated that a determination had not yet been made regarding what documents it intended to offer but that all documents were available for claimants’ inspection. Therefore, we find no abuse of discretion in that regard. Eyde, supra. Further, because we have decided that the Florida property was improperly forfeited, we need not address the second issue. Claimants argue that the trial court abused its discretion in denying their motion in limine to strike the people’s witness list. Claimants contend that the motion should have been granted because the people failed to provide a witness list two months before the date set for completion of discovery, as mandated for civil cases by Third Judicial Circuit local court rules. See Wayne Circuit LCR 2.301. Here, however, there was apparently no date set for completion of discovery, nor was there any order entered compelling a witness list. Therefore, we find no abuse of discretion. Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990). Moreover, we note that there are various factors the trial court must consider in determining discovery sanctions. See factors listed in Dean, pp 32-33. Although the people did not provide a witness list until one week before trial, that tardiness does not appear to be wilful, and claimants apparently never provided a witness list to the people. Further, we find that claimants failed to establish prejudice because they speak in vague and general terms of unknown witnesses, but fail to specify who the witnesses are and how claimants were prejudiced other than in general and conclusory terms regarding the preparation of their defense. Id., p 34. Many of the major witnesses, including Randy Ulmer, were deposed and apparently listed in the prosecution’s answer to claimants’ interrogatory asking the prosecution to identify each person the people might call as a witness at trial. Claimants had notice of the importance of the individuals and what information they had to offer. Accordingly, although we do not condone the behavior of the parties, we find no abuse of discretion. ISSUE IV Claimants argue that the trial court erred in denying them an evidentiary (Franks) hearing to determine the validity of the search warrant. Claimants contend that the court erred in ruling that the validity of the search warrant had previously been decided in the federal court and that collateral estoppel prevented the trial court from redetermining the issue. Claimants argue that it is improper for this Court to apply crossover estoppel to preclude the claimants from challenging the validity of the search warrant. Claimants argue that this is so because there is no mutuality between the charging parties in the two cases, because the federal court hearing the criminal case was required to apply a different burden of proof, and because claimant Robert Hawkins was not given a full or fair opportunity to litigate the issue in the federal forum. Collateral estoppel, as a means of judicial economy, precludes the relitigation of an issue in a subsequent and different cause of action between the same parties where the prior proceeding ended in a final judgment and the issue was (1) actually litigated, and (2) necessarily determined. People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990). It is necessary to establish that the same parties were involved in both proceedings. Id., p 155. Further, we must consider whether the party against whom collateral estoppel is asserted has had a full and fair opportunity to litigate the issue. Id., pp 156-157. Crossover estoppel involves issue preclusion in a civil proceeding following a criminal proceeding and vice versa. Id., p 155. The prior proceeding resulted in a final judgment. Further, the same parties were involved. The federal prosecution and the prosecution in this case are essentially the same party, albeit of different governments. Id., p 156. We also conclude that claimants had a full and fair opportunity to litigate the issue. Robert Hawkins was the only claimant who was involved in the prior proceeding. However, his interests should have been adequate to protect the interests of the other claimants. Finally, the issue was actually litigated and necessarily determined because the trial court in the federal action clearly ruled on the merits of the motion. Accordingly, we find that the trial court properly applied collateral estoppel with regard to this issue. Therefore, we need not address whether claimants are entitled to a Franks hearing. ISSUE V Claimants argue that the prosecution failed to prove by a preponderance of the evidence that the assets were subject to forfeiture, and that the trial court therefore erred in ordering forfeiture. Michigan law provides that anything of value that can be traced to an exchange for a controlled substance is subject to forfeiture under MCL 333.7521(1X0; MSA 14.15(7521X1X0. In re Forfeiture of United States Currency, 164 Mich App 171, 178; 416 NW2d 700 (1987). Forfeiture proceedings are in rem civil proceedings, and the party bringing the action must prove its case by a preponderance of the evidence. In re Forfeiture of 719 N Main, 175 Mich App 107, 114; 437 NW2d 332 (1989). In order for an asset to be ordered forfeited, the trial court must find that there is a substantial connection between that asset and the underlying criminal activity. In contrast, property that has only an incidental or fortuitous connection to the unlawful activity is not subject to forfeiture. In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246 (1989). The trial court did not clearly err. MCR 2.613(C); In re Forfeiture of $5,264, supra, p 260. Contrary to claimants’ argument, we do not believe that a connection with a specific incident of drug dealing must be shown for each asset; rather, the assets need only be traceable to drug trafficking. In the case at bar, the prosecution relied on the theory that Robert Hawkins, a retired factory worker, was a drug trafficker and that, on the basis of his unexplained increase in net worth from approximately 1983 to 1989, most of the assets later acquired by claimants were associated with drug dealing. The people presented evidence that Hawkins was in fact a drug dealer. Further, the people established that claimants had an exceedingly large income and amount of assets beyond what could be legitimately accounted for. Although claimants apparently had legitimate sources of income as well, they could not possibly account for their immense wealth. We find incredulous claimants’ explanation that the acquisition of their extensive assets was made possible by their receipt of a substantial cash payment for a personal injury claim. We agree with the trial court that the Macomb County lawsuit was fraudulent. Accordingly, there was sufficient evidence to demonstrate a substantial connection between drug trafficking and the property in this case. ISSUE VI Claimants argue that the trial court erred in ordering forfeiture of property belonging to Pamela Hawkins through joint tenancy or tenancy by the entireties, because she was an innocent owner whose property rights may not be diminished because of the conduct of another owner. The controlled substances act provides that property owned by another is not subject to forfeiture where the owner lacks knowledge of the drug activity. MCL 333.7521(l)(d)(ii) and (f); MSA 14.15(7521)(l)(d)(ii) and (f). See also In re Forfeiture of $5,264, supra, p 260. In the case of joint ownership of assets, the state may forfeit only the ownership interest of the noninnocent owner. In re Forfeiture of $53, 178 Mich App 486, 486; 444 NW2d 182 (1989). The trial court found that any property Pamela Hawkins claimed as her individual property or property owned jointly with her husband was subject to forfeiture pursuant to a joint enterprise theory. Again, we find no clear error. MCR 2.613(C); In re Forfeiture of $5,264, supra, p 260. The evidence established that Pamela Hawkins enjoyed the substantial wealth her husband earned and it is logical to assume that Mrs. Hawkins was aware that the income was not derived from legitimate sources. Most importantly, because we found that the lawsuit regarding Mrs. Hawkins’ injuries was fraudulent, it follows that Mrs. Hawkins knowingly participated in this scheme to launder money. ISSUE VII Claimants argue that the trial court erred in ordering forfeiture of assets traced by the prosecution to origins more than two years before May 10, 1989, the date of the initiation of the forfeiture action. Claimants refer to the two-year limitation period set forth in the Revised Judicature Act for actions for the recovery of a penalty or forfeiture based on a penal statute brought in the name of the people of this state. MCL 600.5809(2); MSA 27A.5809(2). Claimants do not contend that the action was untimely. We note that the Michigan Legislature adopted forfeiture provisions modeled, in part, after the federal forfeiture statute. See n 4, ante. Therefore, we find persuasive federal case law interpreting the similar provisions. In re Forfeiture of $53, supra, p 486. In United States v Milicia, 769 F Supp 877, 884 (ED Pa, 1991), the court found that the forfeiture statute begins to run when the drug offense is complete. The court ultimately ruled that proceeds derived from or used to facilitate a drug offense after the effective date of the forfeiture statute were subject to forfeiture liability even though this date was beyond the period of limitation. Id., pp 884-885. Claimants do not contend that any property acquired before the effective date of the forfeiture statute was forfeited. Accordingly, we find that no error occurred in this regard. ISSUE VIII Claimants argue that the trial court erred in employing mistakes of fact and law in its decision. Claimants first contend that the trial court incorrectly concluded that the prosecution could rely on a net-worth theory while not having to find that the assets in this case were traceable to any specific drug transaction. We disagree. The drug forfeiture act requires that the property be traced to drug dealing by a substantial connection. In re Forfeiture of $5,264, supra, p 262. As discussed above, a connection to a specific incident need not be shown. Here, the incident Ulmer testified to, together with the enormous income and assets beyond what claimants could legitimately have, provides a substantial connection to narcotics activity. Further, claimants argue that factual references regarding Robert Hawkins’ involvement in drug dealing were also not supported by the record. However, the testimony of Randy Ulmer, together with the "weight sheet” that was found in claimants’ house, was sufficient evidence to show that Robert Hawkins was a drug trafficker. Claimants contend that the trial court made inconsistent findings regarding the credibility of informant Randy Ulmer. Ulmer’s testimony, when reviewed as a whole, was certainly questionable. However, we cannot say it was not credible, especially where the trial court had a better opportunity to evaluate the witness. The trial court could properly find Ulmer credible, although he had been impeached, because he explained the inconsistencies. Further, the trial court could properly find that Ulmer had no bad personal feelings against claimants although he expected a percentage of the assets forfeited. Finally, claimants assert that the trial court, in making its findings of fact, referred to matters, such as newspaper articles, not admitted into evidence. We disagree. While noting a specific article regarding attorney Alvin Brazzell’s federal conviction, the trial court also noted that it was basing its decision on only the evidence Brazzell offered at trial. ISSUE IX Claimants argue that the trial judge erred in not recusing himself despite his clear bias and partiality against claimants or claimants’ counsel. We find that the trial judge did not abuse his discretion in denying claimants’ motion for recusal or disqualification. Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 23; 436 NW2d 70 (1989). Disqualification is appropriate when a judge cannot impartially hear a case, including when the judge is personally biased or prejudiced for or against a party or attorney. MCR 2.003(B) (2). An actual showing of prejudice is required before a trial judge will be disqualified. Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 731; 465 NW2d 395 (1991). The party who challenges a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. Arnholt v Arnholt, 129 Mich App 810, 817; 343 NW2d 214 (1983). Claimants brought three motions for recusal based on bias and prejudice. However, because claimants failed to provide a transcript from the second motion and failed to bring the third motion before the chief judge of the trial court, we will not address them. Nye v Gable, Nelson & Murphy, 169 Mich App 411, 413; 425 NW2d 797 (1988); MCR 2.003(C)(3)(a); Law Offices of Lawrence J Stockier, PC, supra, p 23. The first motion was based on various rulings made against claimants by the trial court and the trial judge’s allegedly unusual and close relationship with the prosecutor and his staff. Claimants raise only the latter issue on appeal. In regard to this issue, claimants refer to a note delivered by the prosecutor’s investigator to the trial judge. However, the investigator was merely relaying a message from the court reporter to the judge stating that she had to catch a bus. Apparently, the investigator just happened to be sitting closest to the judge. Claimants also refer to the prosecutors’ "admission” that they act as "runners and law clerks for the trial judge.” However, claimants have seen fit to add the words "for the trial judge,” which alters the meaning of the statement. The prosecutors explained numerous times that they had to act as runners and clerks for their own office because of a lack of staff. As a result, the prosecutors stated that their positions necessitated numerous trips to the courtroom and file drawers. We find no abuse of discretion. issue x Claimants argue that the trial court erred in ignoring its obligation to find a nexus or substantial connection between the subject assets and specific violations. We have already addressed this issue above. ISSUE XI Claimants argue that they were denied a fair trial as a result of the trial court’s unreasonable treatment of them, their counsel, and their witnesses before and during trial. Claimants assert that the trial judge demonstrated his bias by his comments, rulings, questioning of the witnesses, and conduct in general. As one example of the trial judge’s alleged prej udice, claimants point to a letter sent by Judge Talbot to the federal government regarding an "opportunity to serve at the federal level in a position” helping to fight the war on drugs. Claimants point out that the judge kept a running "tally” of the amount of assets he had forfeited. However, we note that he was required to keep such a tally pursuant to MCL 333.7524a; MSA 14.15(7524a). Moreover, the fact that the trial judge has a personal ambition to fight the "war on drugs” does not mean that he would decide a case unfairly. Further, a review of the trial judge’s questioning of witnesses leads us to believe that the judge was merely attempting to clarify testimony and elicit additional helpful information to aid in his role as factfinder. We note that a trial judge has more discretion to question witnesses during a bench trial than during a jury trial, and we do not find the questioning in this case to be improper. See In re Forfeiture of $53, supra, p 497; Law Offices of Lawrence J Stockier, PC, supra, p 24; People v Meatte, 98 Mich App 74, 78; 296 NW2d 190 (1980). Because this case involved no jury, concern over the effect of the judge’s comments and conduct did not exist. Nevertheless, a judge’s comments and conduct can indicate a possible bias. A trial judge may comment about cases in the absence of a jury. Ferrell v Vic Tanny Int'l Inc, 137 Mich App 238, 248; 357 NW2d 669 (1984). The issue of bias or prejudice should come to this Court’s attention only when a litigant can show that the trial judge’s views controlled his decision-making process. Id. After carefully reviewing the entire record in this case, we conclude that reversal is not warranted on this basis. It appears that throughout the trial the atmosphere was rather tense as a result of the bickering between counsel and between claimants’ counsel and the trial court. It appears to us that claimants’ counsel provoked the trial court with their comments and conduct in general. In addition to being disrespectful to the court in many instances, claimants’ counsel resorted to attacking a prosecutor by apparently stating that her conduct "typified the basest kind of projection as described in psychiatric literature.” This type of conduct was uncalled for. The trial judge also appeared to be agitated by the tactics of claimants’ counsel, such as what appeared in the judge’s eyes to be attempts to create appellate parachutes and reliance on what clearly appears to be a fraudulent lawsuit as an explanation for some of claimants’ extensive assets. As a result, the judge was apparently becoming frustrated and was losing his patience. Although the judge may not have displayed the utmost courtesy, being courteous is the ideal, not the requirement. What is required is that the parties receive a fair trial. Here, claimants have failed to show that the judge’s views controlled his decision-making process. Accordingly, we find that a new trial is not warranted on this basis. ISSUE XII Claimants argue that the trial court erred in denying their request for a jury trial. We disagree. The constitutional right to trial by jury under Const 1963, art 1, § 14 applies to civil actions at law that were triable by a jury at the time the constitutional guarantee was adopted. Wolfenden v Burke, 69 Mich App 394, 399; 245 NW2d 61 (1976), citing Conservation Dep’t v Brown, 335 Mich 343; 55 NW2d 859 (1952). Because there was no right to a jury trial in equitable matters, matters in equity are not entitled to jury trials unless so preserved or created by the Legislature. Wolfenden, supra, p 399; Thomas v Steuernol, 185 Mich App 148, 155-156; 460 NW2d 577 (1990). The forfeiture act does not indicate a right to a jury trial in forfeiture actions. Because a forfeiture action is equitable in nature, we find that the Legislature’s failure to grant the right to a jury trial in forfeiture matters makes the right unavailable. ISSUE XIII Claimants argue that the trial court erred in ordering forfeiture of accounts owned by Rashawn Hawkins, Rodericka Hawkins, Ryan Hawkins, and Robert Hawkins, Jr., because there was no evidence linking the accounts to drug transactions. Claimants argue that the trial court erred when it asserted that the minor children’s claims were purely "derivative” without any finding of consent or knowledge by the minor claimants. We find that the trial court did not clearly err in finding that the accounts should be forfeited. See MCR 2.613; In re Forfeiture of $5,264, supra, p 260. This case was based on a net-worth theory. It was the contention of the prosecutors that claimants were living well beyond their legitimate income. Because there was no adequate explanation for the $25,000 in each child’s account other than being proceeds of drug transactions, forfeiture was warranted. Claimants cannot circumvent forfeiture laws merely by depositing the drug proceeds in their children’s accounts. Claimants further argue that the trial court erred in forfeiting the children’s accounts because they date back to more than two years before this action was commenced and, therefore, the two-year period of limitation was violated. However, as discussed above, we find that no error occurred in . this regard. Affirmed in part and reversed in part. Griffin, P.J., concurred. A federal criminal prosecution was also initiated against Robert Hawkins as a result of Ulmer’s statements and the search of the claimants’ house. According to claimants’ brief, Robert Hawkins was ultimately convicted of possession with intent to distribute cocaine, possession of firearms in the course of a drug trafficking crime, and being a felon in possession of firearms. He was sentenced to a federal prison, where he currently resides. The court records apparently reflect that the settlement amount was $750,000. Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). The people argue that § 5809 is inapplicable, that the prompt filing requirement of MCL 333.7523; MSA 14.15(7523) applies, and that, because the action was promptly filed, claimants’ argument is without merit. Section 7523 provides that "[i]f property is seized pursuant to section 7522, forfeiture proceedings shall be instituted promptly.” However, the prompt filing requirement refers to the time an action must be commenced after seizure. In support of our conclusion that the two-year period of limitation is applicable, we note that the Michigan Legislature adopted our forfeiture provisions modeled, in part, after the federal forfeiture statute. In re Forfeiture of $5,264, supra, pp 255-257. The federal forfeiture act provides for forfeiture actions to be filed promptly after seizure. 21 USC 881(b). Nevertheless, the federal courts apply the five-year general period of limitation for forfeiture actions. United States v One Parcel of Real Property Known as 2401 S Claremont, Independence, Missouri, 724 F Supp 670, 673 (WD Mo, 1989). Because the two statutes are in pari materia and can be construed harmoniously, they shall be. Gooden v Transamerica Ins Corp of America, 166 Mich App 793, 804; 420 NW2d 877 (1988).

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Memorandum Opinion. Defendant pleaded guilty to unarmed robbery and he appeals. A motion to affirm has been filed by the people. Upon an examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm is granted.

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O’Hara, J. This is an appeal from a summary judgment entered in favor of defendant city. Plaintiffs appeal of right. The issues pleaded, the defenses raised, the motions made, the affidavits filed in opposition and support thereof, and the admixture of alleged conflict between the legislative and executive branches of defendant city suggests a controversy of great complexity. As we view it, on appeal at least, the issue is extremely limited. Though appellants assign eight claims of error, we think in the composite they amount to two. (1) On the basis of the complaint, the answer, the exhibits and motions, and the affidavits pro and contra, was summary judgment properly granted? (2) Did plaintiff Detroit-Windsor Teleferry, Ltd., have standing as a party plaintiff? This is how it all came about. In October of 1956 plaintiff AmeriCanada TeleFerry Company, a Dela ware corporation and defendant city, a municipal corporation, executed a document which is entitled “Lease”. It contains an impressive number of signatures; the Controller of defendant city, the Director of the Civic Center Commission (a sort of offshoot of the municipal corporation exercising some measure of control over real estate owned by the city, but subject to continuing control by the common council), the president of plaintiff corporation, AmeriCanada, and the city clerk as the executing amanuensis of the Detroit Common Council. That it binds both parties there can be no doubt. What, if anything, it binds them to is another matter. The city, by its Corporation Counsel, drew the lease. Perforce, it must be construed the more strictly against the city. The instrument purports to lease to plaintiff AmeriCanada, city-owned land for a “Teleferry Building Site” and a “Pylon Site”. The involved land was subject to some measure of delegated control by the Civic Center Commission. The idea was that the lessee would finance and construct an aerial high-wire ferry connecting Detroit and Windsor. During the period of construction, the contractors were to pay the city for 45 parking spaces at 50 cents per day. When construction was completed, this portion of the lease was to terminate. Thereafter, and commencing on the “operational date of the facility”, the lessor was to pay a minimum annual rental of $25,000, and a sliding scale of percentages of gross revenue ranging from 12% to 35%. There were elaborate requirements for bookkeeping, turnstile counts, and audit procedures. One detail seems to have been overlooked or intentionally omitted. No date was set upon which the aerial device had to be completed. As far as we can glean from the record, the parking lot fees were never paid. Construction however was never begun. It cannot be gainsaid that the lessee expended time, effort and money, to be exact $162,000, in preliminary surveys and obtaining permits of one sort or another including presidential approval. As this aspect of the project went on (for four years at least), financing difficulties seemed to have been encountered. But finally, so plaintiffs claim, financing was guaranteed by Swiss financiers and the city council was approached again. After a study by the city’s Auditor General, the Corporation Counsel (city attorney) was ordered to prepare an instrument that would be more specific than the one previously mentioned herein and submit it to the council. We quote the resolution dated November 6, 1969. “Resolved, That the Corporation Counsel be and he is hereby authorized and directed to prepare a lease between the City of Detroit and Americanada Teleferry Company based on the analysis of the Auditor General indicating the guidelines for said proposed negotiated lease which shall be subject to review and approval of the Common Council # # * (Emphasis supplied.) It has been stipulated that for some unspecified refason, the Corporation Counfeel never prepared the lease which the resolution directed him to. In obvious consequence the council never did review and approve or disapprove it. This gave rise to plaintiffs’ prayer for mandamus in addition to specific performance and money damages. While this apparent city legislative-executive stalemate continued, the lessor wrote the Civic Center Commission as follows: “22 January 1969. “Secretary Civic Center Commission “1 Washington Blvd., Detroit, Michigan “Dear Sir: “We are the developers of the AmeriCanada TeleFerry, the aerial cable tramway system intended to link Detroit and Windsor across the Detroit River. We have obtained all of the necessary licenses, permits and leases from the various federal, municipal, and state governments, both in USA and Canada. For financial reason however, we cannot proceed with our project. “We are convinced that for the next few years it will not be possible to develop the AmeriCanada TeleFerry by private capital. Our efforts, including private financing as well as public stock issue, were not successful. We feel that it can indeed be a successful venture if it is sponsored by a suitable governmental agency. We therefore would like to relinquish our control of the company to the Civic Center Commission. “When can we present our offer in person before the Commission? All we want in return is the return of our dollar investment plus a modest finder’s fee for obtaining the necessary documentation, which I repeat is 100 percent complete. “Cordially, “AMERICANADA TELEFERRY COMPANY “/s/ George H. Amber “George H. Amber, President.” Nothing seems to have happened in the way of a written response to this letter. On March 20, 1970, plaintiffs filed their complaints seeking, as herein-before noted, mandamus, specific performance and money damages. The city countered, alleging nonperformance, lack of mutuality of obligation, abandonment, breach, unenforeeability and nonliability generally. The able trial judge applied himself diligently to the matter and favored us with a comprehensive opinion. In substance he held: (1) The letter of January 22 to the Civic Center Commission was in fact a confession of inability to proceed under the original contract, hence that the city was relieved of its obligations, if any, thereunder. (2) Mandamus did not lie because no clear legal duty to perform a specific act was established and because no mutuality of obligation arose from the terms of contract and thus specific performance could not be compelled. (3) The plaintiff, Detroit-Windsor Teleferry, Ltd of Windsor, was neither an assignee, nor a third-party beneficiary and that it had no direct contractual relationships with defendant city, and thus was without standing as a party plaintiff. In this case, as in all summary judgment matters, our scope of review is extremely limited. It is not to our purpose whether plaintiffs could sustain their cause of action, but only whether on favorable view to them they pleaded one, and that when issue was joined a genuine issue of material fact was raised. We think there was. To make our position clear, we must depart somewhat from the format of the trial judge’s finding in order to reach a question which he did not answer explicitly. This, we think is by reason of his holding that the letter of January 22, 1969, constituted a complete abandonment by plaintiffs. Still we are troubled to some degree by the fact that the original lease contained a proviso that certain of the obligations upon plaintiff AmeriCanada would not apply until “the facility became operative”. As we mentioned earlier, no time within which plaintiff had to make it operative was included. We believe the trial judge reasoned that if the abandonment was in fact certain and unequivocal, the foregoing point became moot because if the city had any obligation under the agreement it was extinguished by the abandonment or breach or both by plaintiffs. We cannot agree however that abandonment or breach by plaintiffs could be determined as a matter of law by summary judgment. The letter relied on concludes with this inquiry: “When can we present our offer in person before the [Civic Center] Commission?” We are unable to find any definite answer to this inquiry. We read the question together with the express resolution of the Common Council directing (as the charter of the city provides) the corporation counsel to “prepare a lease * * * indicating guidelines for said proposed negotiated lease which shall be subject to review and approval of the Common Council” to require some action or explanation for the inaction by the city. (Emphasis supplied.) A question of fact as to just what the parties did intend was created. We are well aware that this letter was sent to the Civic Center Commission and not the city itself. But the sword of the abandonment or breach letter must surely out both ways. If the letter, directed to the commission, was sufficient to relieve the city of its obligations, it must be considered under a proper finding of fact as sufficient to continue the city’s obligation if it did not constitute abandonment. We think the whole complex relationship of the parties in this regard requires testimony to afford a basis for finding's of fact. We cannot agree the issues could have been resolved as a matter of law. Since we are compelled to vacate the summary judgment on the foregoing issue, we do not pass on any of the other questions which may be affected by findings of fact including the claimed lack of mutuality of obligation as they might bear on the propriety of the remedy of specific performance. We mention that Reinink v Van Loosenoord, 370 Mich 121 (1963), seems to have diluted the former requirement that specific performance be available to both parties before it can be enforced as to one. Neither do we pass upon the issue of standing of plaintiff Detroit-Windsor Teleferry, Ltd, nor the propriety of mandamus as sought by plaintiffs. These also we think involve issues of fact. We express no view on the question of the entitlement of plaintiffs to money damages, but we do observe that the claimed letter of abandonment makes some reference to a “finder’s fee” due plaintiffs. The term, as far as we can determine, is a stranger to the pleadings and to the whole record. We consider the holding of the trial judge, that plaintiffs in addition to abandoning the project also breached certain performance requirements imposed on them, was prematurely made and should be determined in the factual context of the case as developed by testimony. In finality, we find and hold that there are genuine issues of material fact raised by the pleadings and motions and by the affidavits in support thereof, outside and beyond the stipulation of fact. The summary judgment is vacated. The cause is remanded to the trial court for further proceedings. Appellants may tax the costs of this Court. Costs in the court below will abide ultimate disposition of the case in chief. All concurred. Wolverine Upholstery Co v Ammerman, 1 Mich App 235 (1965); Dudley v Rapanos, 353 Mich 237 (1958).

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Per Curiam. Defendant was convicted by a jury of the crimes of indecent exposure and taking indecent liberties with a child under 16 years of age. During cross-examination, the prosecutor asked the defendant if he had ever been arrested. After an affirmative response, the prosecutor asked what the charges had been. The court ruled, over the defendant’s objection, that the questions and answers were admissible for the purpose of impeaching the credibility of the witness. The defendant then testified that he had been arrested on another charge of indecent exposure contemporaneous with his arrest in the present action. The charge in the other case was dismissed. This Court held in People v Brocato, 17 Mich App 277 (1969), that a defendant, testifying at his own trial, may not be asked if he has been arrested or charged with a crime where the arrest or charge has not resulted in a conviction and where the only purpose of the question is to impeach the defendant’s credibility as a witness. For that reason there must be a new trial. Reversed and remanded. MCLA 750.335a; MSA 28.567(1). MCLA 750.336; MSA 28.568.

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Weaver, P.J. Following a conviction, an appeal, and a new trial, defendant was convicted of murder in the second degree, MCL 750.317; MSA 28.549. Defendant appealed his second conviction and sentence of 75 to 150 years to this Court. The conviction was affirmed, and the Court found that defendant’s sentence did not shock the judicial conscience. People v Armentero, 148 Mich App 120; 384 NW2d 98 (1986). Defendant’s application for leave to appeal to the Michigan Supreme Court was denied on July 29, 1986. People v Armentero, 425 Mich 883 (1986). On October 26, 1987, defendant’s petition for a writ of habeas corpus was denied by the United States District Court. The Sixth Circuit Court of Appeals affirmed the denial of the habeas petition on August 4, 1988, and the United States Supreme Court denied defendant’s petition for a writ of certiorari on December 5, 1988. On August 29, 1989, defendant filed a delayed motion for resentencing in Detroit’s Recorder’s Court, on the basis of the decision of People v Moore, 432 Mich 311; 439 NW2d 689 (1989). After hearing arguments, the court ordered that defendant be resentenced, finding that Moore applied retroactively. The prosecution now appeals the trial court’s decision to this Court. We reverse. The primary issue before us is whether the sentencing rules set out in Moore are to be applied retroactively. Moore itself does not state the extent to which it is to be applied retroactively. Our Supreme Court has held that the factors to be used in determining if a law should be applied retroactively are: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect on the administration of justice. People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971). In another case dealing with the indeterminate sentencing act, the Supreme Court relied on the principles set out in Hampton to hold that the decision was prospectively limited to "those cases in which sentence is to be or has been imposed after date of filing of this opinion and to those cases which on date of filing of this opinion are pending on appeal and which have properly raised and preserved the issue for appeal. Sentences imposed prior to date of this decision and not pending on appeal upon properly preserved specific issues shall not be affected by the rule herein adopted.” People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). We find that the rule enunciated in Moore should be given the same limited retroactive effect. Thus, because defendant’s case does not fall within these restrictions, Moore is not applicable to his sentence. We reverse the order allowing resentencing and order defendant’s previous sentence of 75 to 150 years reinstated. Reversed._ In People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), the Court held that any sentence that provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentencing act.

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Per Curiam. Defendant was convicted of attempted breaking and entering with intent to commit larceny, contrary to MCLA 750.92; MSA 28.287 and MCLA 750.110; MSA 28.305, and sentenced to serve a term of three to five years. On appeal, defendant contends that the trial court committed reversible error by admitting testimony, over defense counsel’s objection, concerning defendant’s disposal of a gun from a car just prior to his apprehension. It is argued that said testimony was irrelevant and highly prejudicial. At trial, a city policeman testified: “Q. What, if anything, unusual happened then? “A. Well, as it — after the Buick had turned north on Saginaw Street at that time, we were directly behind it— excuse me for a second— “Q. How far were you behind it, if you recall? “A. About a half block. And, as we got into the 35 — between 3500 and 3600 block of Saginaw— North Saginaw Street — we observed Mr. Otler, who was sitting in the passenger side of the vehicle, holding his — stick his arm out the window, and he had a .38-caliber Derringer and he dropped it onto the street, and the weapon discharged as it hit the street. “Q. Are both occupants of that car present in the courtroom today? “A. Yes, they are.” Defense counsel objected to this testimony as being irrelevant to the charge before the trial court, but the latter allowed it to stand, on the ground that it was part of what was observed by the witness. Testimony regarding defendant’s possession and disposal of the gun was also admitted at other points in the trial, but no objections were raised at such times. Codefendant Joseph Neal testified: “He looked at me and told me to speed up, leave them, and I said, ‘Leave them, for what, man, you talk like you want to go to jail.’ I said, ‘I ain’t got no driver’s license,’ and he pulled the gun out, and then throwed it out the window, and when the gun hit the sidewalk, it went off.” The people answer that the trial court properly overruled defendant’s objection regarding the admission of testimony concerning defendant’s disposal of a gun on the grounds that such testimony was part of the res gestae of the crime for which defendant was being tried, in that it was part of the events which transpired from the time of the crime to the apprehension of defendant, a matter of minutes. “It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to. show the commission of another crime.” People v Savage, 225 Mich 84, 86 (1923). An examination of the record and briefs discloses no prejudicial error denying Otler any sub stantial right. People v Andriacci, 11 Mich App 482 (1968) (leave denied, 381 Mich 784 [1968]); People v Henderson, 25 Mich App 28 (1970). Affirmed.

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Per Curiam. Defendant Horace McDaniels was convicted by a jury of armed robbery, MCLA 750-.529; MSA 28.797. He appeals as of right. On appeal defendant charges that the trial court erred in failing to instruct the jury on. lesser included offenses. In People v Stevens, 9 Mich App 531, 533-534 (1968), this Court stated: “Where a request has been made to charge on a lesser included offense, the duty of the trial judge is determined by the evidence. “If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v Jones (1935), 273 Mich 430.” In the case at bar, the defendant in the first instance, during a conference on jury instructions, effectively waived instructions on lesser included offenses. After the conference, court adjourned until the following day. The next morning, before the jury retired to deliberate, defendant changed his position and requested that the jury be instructed on lesser included offenses. The trial court denied this request. Had no more transpired, a denial of this request would require reversal, as the record shows no weapon was found upon the defendant at the time of his arrest which occurred immediately after the robbery and at least two witnesses testified that they saw no weapon upon the defendant. The evidence was sufficient to entitle defendant to a charge on lesser included offenses. However, approximately an hour after the jury retired to deliberate, the jury sent the court a note asking “Are we to decide whether it was armed robbery only?” Thereupon the court ordered the jury returned to the courtroom and the foreman of the jury was asked to explain what the note meant. He stated: “There was a discussion between two of the jurors,' or maybe three, as to what it — whether we had to find whether it was an armed robbery, or a robbery, or not guilty. Is that clear enough, sir?” The court thereupon restated its prior instruction as to possible verdicts which excluded lesser included offenses from the jury’s consideration. When the jury retired to resume its deliberations the trial judge placed on the record his reasons for not altering his charge. The court stated as follows : “The Court: The jury having retired, and the counsel present and the defendant present, I think we should put on the record that subsequent to receiving this note from the jury the court indicated that it would consider giving the jury an additional charge telling them what the statute was and also giving them an option that they could bring in the included offense of robbery unarmed, but that counsel for the defendant, after consultation with his client, did indicate that he would go along with the charge as originally given by the court. Is that correct, Mr. Crockett? “Mr. Crockett [for defendant]: Absolutely, your Honor.” The jury returned two hours later and informed the judge they were deadlocked. Following additional instructions on matters not pertinent to this issue, the jury again retired. Subsequently, defendant was found guilty of armed robbery. The integrity of this trial could have been preserved by the court, following the jury’s inquiry, had the court given an added charge on lesser included offenses. However, the defendant specifically rejected the necessary curative instruction on lesser included offenses, chosing to abide by the original instruction in the hope of obtaining an acquittal on the armed robbery charge. This decision was based on the trial strategy of the defense. Obviously the defense read the problems of the jury as an indication that certain members of the jury had eliminated the armed robbery charge and consequently they would return a verdict of not guilty if they had no lesser included offenses to consider. Where, as here, the ultimate error is occasioned by a defense trial tactic which failed, the defendant cannot rely on this error to set aside a jury conviction. Defendant also raises several other issues for the consideration of this Court, all of which are totally without merit. Affirmed.

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Memorandum Opinion. Defendant was convicted of larceny by trick, a violation of MCLA 750.356; MSA 28.588. On appeal defendant complains that the form of the jury verdict was improper. The jury was properly polled and defendant did not object to the form of the verdict and presents no evidence that the form of the verdict was injurious to his rights. Defendant next argues that the trial court erred in admitting evidence of a former offense under MCLA 768.27; MSA 28.1050, because the former offense was too remote in time to be relevant to the present offense. The offenses are sufficiently contemporaneous in time and analogous in circumstance to justify the trial court in admitting the evidence. People v Fleisb, 306 Mich 8 (1943). A review of the record reveals that the jury’s verdict is more than amply supported by the evidence. Defendant’s assignments of error are insubstantial. Affirmed.

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Quinn, J. Plaintiff’s petition for a hearing with the Workmen’s Compensation Department alleged that her husband’s death from lung cancer was caused by exposure “to harmful and irritating fumes and other materials at work” while in the employ of defendant. The referee found for the plaintiff and awarded compensation benefits. On appeal to the Workmen’s Compensation Appeal Board, this award was reversed. On leave granted, plaintiff appeals. Evidence introduced before the referee indicated that plaintiff’s decedent was born January 1, 1935, and began working for defendant in November 1954. Further, that although he smoked 1-1/2 to 2 packs of cigarettes daily most of his adult life, he had no respiratory or lung problem prior to October 1966, and that he died of lung cancer March 27, 1967. Decedent was employed as a Hi-Lo truck driver and worked iíi a building 300 to 400 yards square. The building contained machinery and 80 to 90 HiLos, some of which operated on batteries and some on liquid propane. For seven or eight years prior to decedent’s death, about 75% of the Hi-Los were propane-powered. Most of the time, decedent operated a battery-powered Hi-Lo. There was evidence before the referee that when the propane-powered motors were not functioning properly, they gave off more exhaust fumes; that complaints were made about the fumes which resulted in the repair of the offending motors. Further testimohy indicated that the building smelled of exhaust fumes resembling automobile exhaust fumes, and that the union had negotiated for a better ventilating system. The deposition of plaintiff’s medical expert was introduced before the referee. The hypothetical question put to this expert as a basis for his opinion on causation described the Hi-Lo as a “gasoline motor machine”. The expert’s opinion was that the exhaust of gasoline motors, especially when not functioning properly, contributed definite amounts of cancer-producing chemicals, and that the main causal factors active in the deceased’s development of lung cancer were the carcinogenic materials inhaled from the forklift’s (Hi-Lo) motor exhaust. The deposition of defendant’s medical expert was also introduced before the referee. The hypothetical question on which he based his opinion referred to Hi-Los as “gasoline motor type operated or propane gas type operated”. He testified generally that he knew of no evidence that cancer of the lungs was caused by exposure to exhaust fumes, and that the cigarettes were the most likely cause of the cancer. Defendant filed a supplemental brief with the appeal board April 5, 1971 to which were attached several exhibits that were not before the referee. These exhibits were technical papers and newspaper articles indicating that propane is a low emission fuel. On appeal, plaintiff attacks the submission of these exhibits that were not in the record“before the referee. In its opinion dated May 13,1971, the appeal board held in part: “Plaintiff presented the testimony of a certified specialist in pathology and preventive medicine. In answer to a hypothetically posed question the doctor opined a causal relationship between an exposure to ‘gasoline exhaust fumes’ and the development of lung cancer. Defendant presented the testimony of an internist and cardiologist who states that he treats patients with lung and other types of carcinoma. This doctor expressed the opinion that the death of deceased was in no way related to the conditions of his employment by defendant. We believe that defendant correctly points out that plaintiff’s medical is premised upon facts not disclosed by the record of proofs. Plaintiff’s medical theory was based upon an exposure to gasoline exhaust fumes, a fact not disclosed by the proofs submitted. Deceased was exposed to the exhaust of Hi-Los which burned propane gas. The extent of this exposure is in dispute and we are of the opinion that the weight of evidence shows that deceased himself drove an electrically-powered Hi-Lo approximately 75% of the time which did not even burn propane gas. The only exposure he would have to the exhaust from the trucks which burned the propane gas while he was driving the electrically-powered truck would be from trucks which were driven by other employees in what was described as an extremely large, high and well ventilated building. Whether the exhaust of trucks which bum propane gas are identical to the exhaust which burn gasoline is not disclosed by the proofs before us. Prom newspaper reports it would appear that modern day ecologists do not believe that the exhausts are the same. The failure to show an excessive exposure to gasoline fumes, the fact that it was áhown that he personally drove an electrically-powered truck a large percentage of the time, the defect in the medical testimony which is premised upon excessive exposure to gasoline exhausts, the admitted excessive cigarette smoking Habit of the deceased, the rather multiple lymph node involvement, all tend to make the referee’s finding too speculative to warrant affirmance here. We hold that the plaintiff has failed to meet her burden of proof to show that the death of her husband was due to causes and conditions to which he was exposed while employed by the defendant. The order of the referee is, therefore, reversed and compensation is denied.” (Emphasis supplied.) Plaintiff states the issues on appeal as: “I. Where the Workmen’s Compensation Appeal Board receives evidence without affording a party a hearing pertaining to the admissibility of such evidence, has the aggrieved party been deprived of due process of law? “II. Where the Workmen’s Compensation Appeal Board has relied on inadmissible evidence, is an award entered pursuant thereto supported by the record?” We note a third issue which we deem controlling and which we consider first. It is: “Did the exhibits attached to defendant’s supplemental brief cause the Workmen’s Compensation Appeal Board to reverse the hearing referee?” Plaintiff bore the burden of proof to establish her claim, Levanen v Seneca Copper Corp, 227 Mich 592 (1924). The hearing on appeal from the referee was a de novo hearing, Fawley v National Lead Co, 342 Mich 100 (1955), and plaintiff had the burden of proving her claim before the appeal board. The above quotation from the opinion of the appeal board establishes six facts (underlined) as the basis of its opinion that plaintiff had not met this burden. Not one of these facts relates to the evidence challenged by competent, material, and substantial evidence on the whole record. This analysis obviates discussion of the two issues raised by plaintiff. Affirmed with costs to defendant. All concurred.

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Targonski, J. Plaintiff was employed by defendant as a building superintendent of the Metropolitan Building, an office building in the City of Flint. Plaintiff, his wife, and son lived in the building in a five-room apartment which defendant provided. Plaintiff was required to be on call, more or less, 24 hours per day for security purposes. His duties were to supervise and direct the independent maintenance firm which was employed by defendant to clean the building. Plaintiff was also required to see that the doors of the building were locked at night and unlocked in the morning. He was required to inspect the work after the independent cleaning contractors left the building. He was hired to be there in case of an emergency and to take whatever steps would be necessary in an emergency to' protect loss to the building. A residential manager was employed by defendant who took care of leases, book work, and hiring for the building. The heating system and elevators in the building were automatic and were maintained under a contract with an outside firm. Major electrical and plumbing work was done under contract with outside tradesmen. Plaintiff was not required to do any physical work in the building. Physical work was either done by other employees of defendant or was contracted out. In the evening plaintiff was pretty much free to do as he pleased as long as the various systems of the building were running properly. During the daytime of December 30, 1968, plaintiff left defendant’s building to take his laundry to a laundromat because there were no laundry facilities within defendant’s building. Plaintiff left the building by a main entrance and walked along a public sidewalk to a driveway adjoining the building on the south side. The driveway was owned by Consuméis Power Company. While walking along the drive way to a parking area maintained by defendant, where plaintiff had parked his car, plaintiff slipped and fell on the icy surface and fractured his left hip. The place where plaintiff fell was not on the property owned, occupied, or maintained by the owner of the Metropolitan Building. There was an alternate route to the parking lot, of equal distance, which traversed a public sidewalk and a parking area which was maintained free of ice and snow by defendant. Testimony of plaintiff and his wife showed that they usually left the building and went to their car in the parking lot along the private drive owned by Consumers Power Company. Prior to the date of hearing, plaintiff had recovered from his injuries sufficiently to be capable of doing the work he had been doing prior to the accident, although his injuries still hindered his capacity to perform in other areas of employment. He had applied for similar jobs after being discharged by defendant. He said that he was capable at the time of managing an apartment building and actively sought apartment managing or supervision as employment. He was unable to obtain such employment. On November 14, 1969, a hearing was held. Three days later, the hearing' referee issued a decision and order which found that plaintiff did receive a personal injury which arose out of his employment and was totally disabled at the time of the hearing. On August 10, 1970, the Workmen’s Compensation Appeal Board affirmed the referee. Leave to appeal was granted. On appeal defendant raises two issues. Defendant contends that plaintiff’s accident and injury did not arise out of and in the course of his employment. Further, defendant contends that plaintiff was not entitled to compensation benefits after the date of the hearing. In examining the first issue raised', of whether the injury arose out of and in the course of employment, we must ascertain whether the injury falls within the scope of MCLA 412.1; MSA 17.151. To answer this, two problems must be decided; (1) whether plaintiff was on the “premises” when the injury occurred, and (2) whether the personal errand could be considered “arising out of and in the course of his employment” ? The problem of whether plaintiff was on the “premises” when the injury occurred can be resolved in view of Jean v Chrysler Corporation, 2 Mich App 564 (1966), and Fischer v Lincoln Tool & Die Co, 37 Mich 198 (1971). In Jean, p 568, an injury upon a public roadway lying between the employer-owned parking lot and his place of business was held to be compensable. Our Court stated: “ * * * that the employee who leaves work and within a reasonable time is injured in reaching other premises maintained by his employer as an adjunct of the employment is covered by the act.” In Fischer, the plaintiff was injured on a public sidewalk while walking toward his employer’s place of business from his car which he had parked on the street. This Court held that an employee injured upon a public sidewalk while on his way to work and while within a close proximity to the place where he works suffers an injury which is compensable as arising out of and in the course of his employment. In discussing what construction should be given the word “premises” as contained in MCLA 412.1; MSA 17.151, this Court said: “ ‘Premises’ does not equal ‘property’, and land owned by an employer may or may not be part of the premises, just as land owned by another than the employer might still be considered part of his premises.” After discussing’ Lasiewicki v Tusco Products Co, 372 Mich 125 (1963), and Jean v Chrysler Corp, supra, this Court announced in Fischer, supra, p 203: “From an analysis of present case law we conclude that ‘zone, environments and hazards’ is substantially what is meant by the word ‘premises’ as contained in the workmen’s compensation act. “From the above, we can conclude that an employee is protected by the act when he is within said, ‘zone, environments, and hazards’, while arriving at, departing from, or' during the time of his employment by traveling his usual, customary and direct route.” Here, defendant provided the parking lot and gave plaintiff permission to use the lot, with plaintiff having to cross another’s property or walk on a public sidewalk to reach the lot. We are not concerned with whether the property, which was crossed, was privately or publicly controlled or whether more than one route was available; but in light of Jean v Chrysler Corp, supra, and Fischer v Lincoln Tool & Die Co, supra, we conclude that plaintiff was within the “zone, environments and hazards” of his labor so as to be considered on the premises of his employer in regard to MCLA 412.1; MSA 17.151. Having established that plaintiff was within the “zone, environments and hazards” of his labor or, in other words, having sufficiently satisfied the premises requirement in' MCLA 412.1; MSA 17.151, we must determine whether the errand can he considered to have arisen out of and in the course of employment. Both parties have conceded in their respective hriefs that plaintiff was a resident employee continuously on call 24 hours per day. The appeal board also came to a similar determination, saying: “Even without the presumption afforded by the 1954 amendment this case would be compensable because the proofs presented herein show that plaintiff was employed under a special type of contract of hire where the activities and duties imposed upon him by his employer clearly placed him at the point of peril at the time the injury occurred. The course of employment is not synonymous with scope of employment, but includes an employee’s administration to his own human needs, (Crilly v Ballou, 353 Mich 303 [1958]). Plaintiff’s trip to the laundromat under the circumstances disclosed by the proofs before us was a unique way of life in his working environment which was imposed upon him by the particular contract of hire existing between himself and his employer. We hold that the injury which plaintiff received did arise out of and in the course of the activities and duties imposed upon him by the contract of employment he held with the defendant herein.” With respect to resident employees continuously on call, the general rule is most aptly stated by Larson: “When an employee is required to live on the premises, either by his contract of employment or by the nature of the employment, as is continuously on call (whether or not actually on duty), the entire period of his presence on the premises pursuant to this requirement is deemed included in the course of employment.” 1 Larson, Workmen’s Compensation Law, § 24.00, p 421. See also, Favorite v Kalamazoo State Hospital, 238 Mich 566 (1927). Although this is the generally accepted rule of law, in the past some limitations were placed upon the on-call coverage on the theory that the activity was too distinctly personal to support an award. See Meehan v Marion Manor Apartments, 305 Mich 262 (1943). But the recent trend of Michigan law has been very liberal in expanding the coverage afforded an employee under the workmen’s compensation laws. Generally, an employee who is on a personal errand is covered by statute. Dyer v Sears, Roebuck & Co, 350 Mich 92 (1957); Lasiewicki v Tusco Products Go, supra. Even though these recent cases which have upheld an award to an employee who is on a personal errand differ from the present case because they did not deal with resident employees on call, but dealt with the more common employer-employee relationship of the employee being on the premises only for the purpose of working a specified shift, we feel they are representative of the current judicial and legislative attitude toward all workmen’s compensation laws in this state. Evidence of this can further be demonstrated by the prospective rule of law announced in Whetro v Awkerman, 383 Mich 235, 242-243 (1970), in which the Court states: “We hold that the law in Michigan today no longer requires the establishment of a proximately causal connection between the employment and the injury to entitle a claimant to compensation. * * * They [cases] have brought the law in Michigan to the point where it can be said today that if the employment is the occasion of the injury, even though not the proximate cause, compensation should be paid.” Applying the preceding rationale, we find; that plaintiff falls within the general rule regarding a resident employee continuously on call. This being so, plaintiff’s injury, even though in pursuance of a personal errand, arose out of and in the course of his employment and is therefore within the scope of MCLA 412.1; MSA 17.151 and compensable. As to the second issue raised, defendant alleges that because plaintiff was not disabled at the date of the hearing from performing the duties of his employment that existed at the time of his injury, the appeal board erred in allowing compensation beyond that date. Defendant’s contention arises under MCLA 412.11; MSA 17.161, which says that an injury is not compensable unless it impairs the employee’s “earning capacity in the employment in which he was working at the time of the injury”. In the proceedings below the appeal board found that although plaintiff was probably capable of performing the duties of a building superintendent again, based upon the determination that plaintiff’s employment was in the field of unskilled labor and on account of his injury, plaintiff still was not physically capable of competing with able-bodied men in the total field of unskilled labor and, therefore, affirmed the award of compensation. Specifically, the appeal board found: inability to perform a specific unskilled job to which he may have been assigned at the time of his injury but it is dependent upon his inability to compete with others in the general field of labor where his injury occurred. Plaintiff admits that he probably could perform work where he would only be required to supervise others, but he has been unable to find such work elsewhere and defendant refuses to hire him. “The proofs show, the referee found, and this finding is here uncontested, that at the time of plaintiff’s injury he was employed in the field of unskilled labor. This is a field of labor normally referred to as common labor requiring no particular skill to perform and the field encompasses the whole spectrum of unskilled work. A common laborer’s right to receive compensation is not solely contingent upon his # * # “It is undenied that plaintiff’s proofs do show that plaintiff suffered serious injury which caused a state of disablement for a considerable period of time. Under these circumstances it is incumbent upon the defendant to either present medical evidence from which we can conclude that plaintiff has recovered sufficiently to compete with able-bodied persons within the total field where injury occurred, or show that work within plaintiff’s capacity to perform is available to him before an order can enter stopping or reducing compensation.” Upon review of an appeal board determination, this Court has the obligation to accept the board’s finding of facts if there is any evidence whatever to support the findings. Williams v Chrysler Corp, 29 Mich App 398 (1971). In examining the evidence presented before the appeal board, we find that there was a sufficiency of evidence to substantiate the board’s findings. Although there was no testimony as to whether plaintiff’s job was skilled or unskilled, the board can draw inferences from other facts established so that it could have made the finding (which was uncontested) that plaintiff was engaged in common labor based upon the type of activity involved, which was supervising the maintenance men and performing acts of security in the building. Meyers v Michigan Central Railroad Co, 199 Mich 134 (1917). We further conclude that the appeal board was correct in its interpretation of MCLA 412.11; MSA 17.161 to this situation. In applying that rule it has long been held that there are two classifications of employment—skilled and common labor (unskilled), with skilled labor divided into many separate skills. Kaarto v Calumet & Hecla, Inc, 367 Mich 128 (1962); Hutsko v Chrysler Corp, 381 Mich 99 (1968). Whether or not compensation is awarded often depends upon the classification of employment that is found to exist at the time of the injury. See, Kaarto v Calumet & Hecla, Inc, supra. In Kaarto the Court said, at 132: “Had plaintiff been engaged in common labor at the time of injury, he would be entitled to compensation benefits because his injuries prevent him from doing some common labor. Miller v S Fair & Sons, 206 Mich 360 [1919]; Smith v I Stephenson Co, 212 Mich 154 [1920]; and Wieland v Dow Chemical Co, 334 Mich 427 [1952].” Consequently, we hold that the appeal board, having determined that plaintiff was employed' in the field of common or unskilled labor at the time of his injury, properly ruled that plaintiff continued to be disabled because of a loss of earning power in the whole field of unskilled labor. Affirmed. Costs to appellee. All concurred. Defendant will be used throughout this opinion, even though there are two defendant-appellants, the employer and its insurance carrier. This statute has been repealed and has been replaced by MCLA 418.301; MSA 17.237(301). Applies only to Whetro v Awkerman, 383 Mich 235 (1970), and all claims for compensation arising after March 12, 1970. This statute has been repealed and has been replaced by MCLA 418.371; MSA 17.237(371).

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Blair Moody, Jr., J. Plaintiff Camelot Excavating Company (hereafter Camelot) brought action against defendant St. Paul Fire and Marine Insurance Company (hereafter St. Paul) to recover payment on a labor and materials bond. Camelot was a subcontractor of third-party defendant Priestly Contracting, Inc. (hereafter Priestly). Priestly was named as principal on the bond. Defendant St. Paul moved for accelerated judgment on the basis of a one-year period of limitations contained in the bond contract. Plaintiff Camelot brought a motion for summary judgment under GCR 1963, 117.2(3). Camelot’s motion was granted; St. Paul’s motion was denied. St. Paul appealed to the Court of Appeals. The Court reversed on grounds that the one-year limitations period did apply so as to preclude Camelot’s third-party claim under the bond. 89 Mich App 219; 280 NW2d 491 (1979). We granted leave to appeal. 406 Mich 1009 (1979). We must resolve two questions presented by the parties: (1) whether the bond contract negotiated by the principal, Priestly, and surety, St. Paul, to insure claims against labor and material for the benefit of a third party can subject plaintiff Camelot to a limitation period which is shorter than that created by the Legislature; and (2) whether the form of bond used in this state in this case and in other states throughout the United States which makes reference to statutes of limitations within the particular state where it is used is ambiguous. We hold that neither public policy nor existing authority prohibit private contracting parties from including in a labor and materials payment bond a provision which reasonably limits claimants to a period within which to bring suit that is shorter than the applicable state statute of limitations. We further find that the form of contract used in this case is clear on its face. The contractual exception clause to the one-year limitation provision is relevant only where state statutes prohibit shorter than statutory limits. Thus, this clause does not apply to preclude the one-year provision in this case. The Court of Appeals is therefore affirmed. I On April 8, 1973, defendant Priestly, general plumbing contractor for a private apartment construction project, contracted with defendant St. Paul to obtain a required labor and materials payment bond. The bond provided that St. Paul, as surety, would pay claims made by subcontractors of Priestly, as principal, where the subcontractor had not been paid in full within 90 days of the completion of the subcontractor’s work. The bond was primarily intended to protect the owner of the project, Village Homes, Inc., against mechanics’ lien claims which might accrue over the course of building construction. Priestly entered into a subcontract with Camelot for certain excavation work. The claims intended to be secured were those of subcontractors such as plaintiff Camelot. As subcontractor, Camelot completed the excavation work pursuant to its contract with Priestly. The construction proceeded until April, . 1974, when defendant Priestly abandoned the project. Priestly gave no notice to Camelot that it was leaving the project. At that time, the balance due for the work Camelot had provided was $18,848. Camelot brought suit against Priestly and recovered a default judgment for the amount owing. Then, on August 26, 1976, plaintiff separately sued defendant St. Paul on the bond. St. Paul interposed the defense that the contract barred Camelot’s suit on the basis of the one-year limitation clause contained in the bond contract. The learned trial judge held that the qualifying language in regard to prohibition of private limitation periods by the state limitations statute rendered the contract provision ambiguous and therefore rejected the asserted defense against plaintiff’s claim. On appeal, the Court of Appeals reversed. It found no ambiguity in that the qualifying provision proscribed a shorter limitation than the statutory period only where prohibited by law. The Court of Appeals determined that Michigan’s general statutory limitation provision does not prohibit shorter contractual limitations on suits pertaining to private construction bonds. Consequently, the limitation provision was a valid defense to plaintiff’s suit. II Absent any statute to the contrary, the general rule followed by most courts has been to uphold provisions in private contracts limiting the time to bring suit where the limitation is reasonable, even though the period specified is less than the applicable statute of limitations. The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588, 592; 242 NW2d 396 (1976). See also Barza v Metropolitan Life Ins Co, 281 Mich 532, 538; 275 NW 238 (1937); Turner v Fidelity & Casualty Co of New York, 112 Mich 425, 427; 70 NW 898 (1897). This rule has been held to apply in contracts bonding the performance of building or construe tion projects. See Burlew v Fidelity & Casualty Co of New York, 64 F2d 976, 977 (CA 6, 1933), cert den 290 US 686; 54 S Ct 122; 78 L Ed 591 (1933); Adams v Standard Accident Ins Co, 124 Cal App 393; 12 P2d 464 (1932); Cook v Heinbaugh, 202 Iowa 1002, 1003-1004; 210 NW 129 (1926); Lesher v United States Fidelity & Guaranty Co, 239 Ill 502, 511; 88 NE 208 (1909); McGarry v Seiz, 129 Ga 296, 299; 58 SE 856 (1907); Ausplund v Aetna Indemnity Co, 47 Or 10, 22; 81 P 577 (1905), reh den 47 Or 23; 82 P 12 (1905). See also Anno: Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 ALR3d 1197; Anno: Validity of contractual limitation of time for bringing action, 121 ALR 758. The boundaries of what is reasonable under the general rule require that the claimant have sufficient opportunity to investigate and file an action, that the time not be so short as to work a practical abrogation of the right of action, and that the action not be barred before the loss or damage can be ascertained. See Page County v Fidelity & Deposit Co of Maryland, 205 Iowa 798; 216 NW 957 (1927); Cook v Northern Pacific R Co, 32 ND 340; 155 NW 867 (1915); Sheard v United States Fidelity & Guaranty Co, 58 Wash 29; 107 P 1024 (1910), reh den 58 Wash 37; 109 P 276 (1910). In the instant case, the bond secured claims for labor and materials brought by subcontractors in plaintiff Camelot’s position. However, the primary object of the bond contract was to protect the owner, Village Homes, Inc., against such claims: "The purpose and only purpose of a labor and materials payment bond is to protect the owner against the claims of those who furnish' labor and materials to the contractor because, if he fails to pay these bills, mechanics liens can be filed against the owner and pay ment enforced even though the owner had no direct dealing with the labor and materialmen.” Standard Accident Ins Co of Detroit v Rose, 314 Ky 233, 238; 234 SW2d 728 (1950). Camelot was not a party to the payment bond. Rather, this contract was negotiated between the principal, general contractor Priestly, and the surety, St. Paul. Upon completing the excavation work in accordance with its labor and materials contract with Priestly, and not being fully paid, Camelot became a third-party creditor beneficiary under the bond. See 1 Restatement Contracts, §§ 133, 139, pp 151-152, 165. The parties agreed: "No suit or action shall be commenced hereunder by any claimant: "After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” Normally, where no shorter contractual period of limitation exists, the Michigan statute of limitations specifies a six-year period for bringing suits on contract. MCL 600.5807(8), 600.5813; MSA 27A.5807(8), 27A.5813. Plaintiff Camelot asserts that it should not be restricted by a contractual limitation as it was not a party nor did it have actual knowledge of its contents. Camelot urges that the general statute of limitations should apply to its right of action. No authority exists in Michigan which speaks directly to the question whether legal principles prohibit the enforcement against plaintiff subcon tractor of a one-year limitations provision in a labor and materials payment bond negotiated between a general contractor and surety for the primary benefit of third party owner. However, other jurisdictions have addressed this specific question and we find their views persuasive. The rule adopted by most of these jurisdictions allows the contractual limitations provision to control any third-party subcontractor’s action, even though the subcontractor was not a party to the bond and was not aware of its contents until after the limitation period had run. In California, the Court of Appeals reached this conclusion in relation to a bond provision identical to the one considered in the instant case. Sanders v American Casualty Co of Reading, Pennsylvania, 269 Cal App 2d 306; 74 Cal Rptr 634 (1969). In Sanders, a materials supplier sued on a subcontractor’s bond to recover the amount due for materials the subcontractor had furnished the general contractor. It was stipulated by the parties that the subcontractor ceased work on the project involved more than one year prior to plaintiff Sanders’ commencement of suit. It was also undisputed that plaintiff first learned of the bond’s existence only shortly before action was brought. The question presented to the Court was "whether the one-year limitation contained in a subcontract labor and material payment bond issued on behalf of a subcontractor in favor of a prime contractor bars a claim by a materialman who was not a party to the contract and was not aware of its existence or contents until after the one-year period expired”. Id., 308. Except for the relative position of the parties, the case is thus the same as the instant case. In resolving the question presented, the Court in Sanders found no controlling significance in the fact that plaintiff had not been a direct party to the contract. The Court found the provision within the boundaries of what was considered a reasonable period of limitation admittedly shorter than the statutory period. Language in the contract which specified that "any claimant” would be barred was found sufficient to apply to plaintiff Sanders. The Court went on to characterize Sanders as a third-party beneficiary and found his rights coterminous with those of the principal: " 'There can be no donee beneficiary or creditor beneficiary unless a contract has been formed between a promisor and promisee; and if a contract is conditional, voidable, or unenforceable at the time of its formation, * * * the right of a donee beneficiary or creditor beneficiary under the contract is subject to the same limitation.’ (Restatement, Contracts, § 140, pp 165-166).” Id., 309. Any rights Sanders had under the contract were thus found to be limited by the conditions of the contract itself. See also Bogart v George K Porter Co, 193 Cal 197; 223 P 959 (1924). Plaintiffs unawareness of the contract could not be interposed to circumvent the provision where a reasonable time was provided under the contract to investigate the kinds of claims which would normally arise in such circumstances. We find no credible grounds upon which to distinguish the instant case from Sanders. The relative contractual relationship of the parties was the same; the claim of recovery was the same; the limitation provision was identical and the existing principle of allowing reasonable periods of limitation was present. See Rechtsteiner v National Surety Co of New York, 44 Cal App 774; 187 P 34 (1919). See also The Tom Thomas Organization, Inc v Reliance Ins Co, supra, 592. In Massachusetts, we find another essentially identical decision. General Electric Co v Lexington Contracting Corp, 363 Mass 122; 292 NE2d 874 (1973). In this case, plaintiff sued on a surety bond executed by defendant New Amsterdam Casualty Co. Lexington was principal on the bond and default judgment had been entered as to its liability on the underlying materials claim. The limitation provision in the bond contract was virtually identical to the one involved in the instant case: "No suit or action shall be commenced hereunder by any claimant * * * [a]fter the expiration of one (1) year following the date on which principal ceased work on * * * [the] contract * * Id., 123. It was stipulated by the parties that work on the project for which the bond was executed ceased more than one year prior to suit. The Massachusetts Supreme Court found the provision enforceable against General Electric. Plaintiffs argument that a longer statutory period prevailed in the face of the private contractual limitation was rejected. The Court held that the private contractual provision applied rather than any state statutory limitation. The one-year limitation controlled. Little appears to distinguish that case from the present action. The parties were in a similar contractual posture; the basis of recovery on the contract was the same; the limitation provision was identical and the underlying authority allowing reasonable contractual limitation of action was the same. Plaintiff Camelot contends that in any event public policy should bar contractual limitations by private parties which are shorter than the six-year statutory period of limitations. Generally, the weight of authority in Michigan and elsewhere is against this position. See The Tom Thomas Organization, Inc v Reliance Ins Co, supra, 592; Goosen v Indemnity Ins Co of North America, 234 F2d 463 (CA 6, 1956); Comm’r of Ins v Central West Casu alty Co, 301 Mich 427; 3 NW2d 830 (1942); Ladies of the Modern Maccabees v Illinois Surety Co, 196 Mich 27; 163 NW 7 (1917); Forest Twp v American Bonding Co of Baltimore, 187 Mich 657; 154 NW 26 (1915). See also Cook v Heinbaugh, supra, 1003-1004; Lesher v United States Fidelity & Guaranty Co, supra, 511; McGarry v Seiz, supra, 299. More specific recent decisions have issued in other jurisdictions which serve to further undermine plaintiffs public policy argument. In Georgia, for instance, any argument that public policy prohibits such reasonable contractual limitations as contained in the instant case has been„soundly rejected. Sam Finley, Inc v Interstate Fire Ins Co, 135 Ga App 14; 217 SE2d 358 (1975). In Finley, plaintiff subcontractor sued a contractor seeking recovery of amounts due on its contract. Defendant surety was made a party to the action under the labor and materials bond executed on behalf of the principal. The bond contract contained a limitation that "no suit or action shall be commenced thereunder by any claimant after the expiration of one year following the date on which the principal ceased work on such contract”. Id., 15. In deciding against plaintiff, the Court was explicit that public policy simply did not prohibit such a limitation provision in a private labor and materials payment bond: "Where a labor and material payment bond is given to the owner in which the general contractor is principal, and an insurance company is surety, which bond provides that no suit or action shall be commenced thereunder by any claimant after the expiration of one year following the date on which the principal ceased work on such contract, such limitation upon the bringing of an action by a beneficiary of the contract is not void on the grounds of public policy.” Id., 15. Consistent with this holding, see Walton v American Mutual Fire Ins Co of Charleston, South Carolina, 109 Ga App 348, 349; 136 SE2d 168 (1964); Aiken v Northwestern Mutual Ins Co, 106 Ga App 220; 126 SE2d 630 (1962); General Ins Co of America v Lee Chocolate Co, 97 Ga App 588; 103 SE2d 632 (1958). We find no valid reason not to adopt the position taken in Finley. The contract in the present case was a private contract. No statutory mandate exists that bonds be provided in private subcontracting situations such as this one to protect labor and materials claims. In fact, there is a remedy provided by statute for persons in plaintiffs position which plaintiff failed to invoke. We refer to the provision for obtaining a mechanics’ lien. MCL 570.5; MSA 26.285. Such remedy was open to plaintiff and was not barred by the limitation provision in the bond. Apparently, however, plaintiff Camelot may not have complied with the notification provision of the mechanics’ lien statute and so lost the primary possible avenue of recovery against defendant Priestly. It might be further noted at this point that the mechanics’ lien statute contains a limitation on commencing actions to enforce a lien of one year from recordation, which is similar to the contract provision of the private bond. MCL 570.9; MSA 26.289. Beyond this possibility, we recognize that plain tiff is a third-party creditor beneficiary of the bond executed by the principal, contractor Priestly, and the surety, St. Paul, for the benefit of the owner, Village Homes. Sanders v American Casualty Co of Reading, Pennsylvania, supra, 310; Finley v Interstate Fire Ins Co, supra, 15; Rumsey Electric Co v University of Delaware, 334 A2d 226, 229 (Del Super Ct, 1975), aff'd 358 A2d 712 (Del, 1976). See 1 Restatement Contracts, §§ 133, 139, pp 151-152, 165. However, we are also of the opinion that plaintiff’s status as a third-party beneficiary was subject to the stated conditions of the contract, including the provision that limited the time to bring suit to one year from the date the principal ceased work on the project. See 1 Restatement Contracts, § 140, pp 165-166; 4 Corbin on Contracts, §820, p 278. See also Votaw Precision Tool Co, Inc v Air Canada, 60 Cal App 3d 52, 56; 131 Cal Rptr 335 (1976); Rumsey Electric Co v University of Delaware, supra, 334 A2d 226, 230. We find no violation of public policy or basic unfairness in allowing the enforcement of this private contractual period of limitation, even though shorter than the statutory period normally applicable. The period provided was reasonable. Neither do we find a violation of public policy in the fact that the plaintiff failed to discover the contract prior to its limitation. Plaintiff had a year in which to investigate possible bases of recovery. It failed to initiate any action during the period when recovery for its work was possible. We might feel different had the limitation provision been constructed in such a way that plaintiff could not have reasonably discovered its loss prior to the point at which the limitation period ran. Cook v Northern Pacific R Co, supra, 350-351; Sheard v United States Fidelity & Guaranty Co, supra, 35. However, in this case, the contract provided one year from the time at which the contractor Priestly ceased work on the project. Certainly, with a reasonable amount of diligence, plaintiff could have discovered the existence of the bond contract and the fact that contractor Priestly had abandoned the work. A cursory investigation of the facts surrounding the progress of the project or lack thereof and some minimal inquiry of legal remedies could have reasonably protected plaintiff’s mechanics’ lien or contractual third-party rights. Public policy will not intervene to aid plaintiff in this case. We find the contractual provision enforceable. Ill Plaintiff Camelot argues that the provision in the bond is ambiguous and thus should be construed against St. Paul. We find no ambiguity. The provision bars any claimant from commencing action: "After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” (Emphasis added.) The point of controversy involves the italicized portion of the quoted provision. It is asserted that Michigan’s six-year statutory limitation on contract actions fits within the prohibition language specified in the contract clause. MCL 600.5807(8), 600.5813; MSA 27A.5807(8), 27A.5813. Those two provisions state: , "No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. "(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.” "All other personal actions shall be commenced within the period of 6 years after the claims accrue and not afterwards unless a different period is stated in the statutes.” No ground exists to alter the one-year limitation on actions contained in the bond contract unless a state statutory provision prohibits the shorter period. The term prohibit has been defined by decisions of this Court: “Strictly, the word 'prohibit’ means to forbid or interdict by authority, hinder, debar, prevent.” Timm v Common Council of the Village of Caledonia Station, 149 Mich 323, 324; 112 NW 942 (1907). We fail to see any language contained in either statutory provision for limitation of contract actions which would prohibit a shorter period as to private labor or materials payment bond contracts. Beyond the possible application of the bond contract language, we can perceive no basis for finding the provision ambiguous. No claims of ambiguity have been raised elsewhere in contracts containing identical terms. See Sanders v American Casualty Co of Reading, Pennsylvania, supra, 309, fn 2; General Electric Co v Lexington Contracting Corp, supra, 123; Finley v Interstate Fire Ins Co, supra, 15. We have no general policy or statutory enactment in this state which would prohibit private parties from contracting for shorter limitation periods than those specified by general statutes. Some states do and so private contracts for shorter periods are precluded. See, eg., Hiram Scott College v Ins Co of North America, 187 Neb 290; 188 NW2d 688 (1971). However, where no statute expressly prohibiting a shorter contractual period exists, decisions in other jurisdictions have found no construction problem in upholding these provisions. Rumsey Electric Co v University of Delaware, supra. In Rumsey, plaintiff electrical equipment supplier sued to recover the cost of materials provided a then-bankrupt subcontractor on the basis of a performance bond executed among the various defendants to a university building project. One clause of the bond contract proscribed any commencement of action after one year after the project’s completion. The Delaware Supreme Court resolved any question of ambiguity by stating that absent any "express statutory provision to the contrary”, the shorter period prevailed. Id., 358 A2d 714. Express prohibitions exist in some states. However, with the absence of such a policy or statute in Michigan, we find no application of the language in the bond contract which would amend the shorter period to the prevailing law and thus no ambiguity in the contract clause. We thus reject plaintiff’s assertion and affirm the enforcement of the bond contract bar to suit. IV The bond contract upon which plaintiff relies in its suit against defendant St. Paul does not unreasonably limit the time in which plaintiff subcontractor, as third-party beneficiary, may commence legal action. As a third-party beneficiary, plaintiff is limited to reasonable conditions specified by the contract where those conditions reasonably require compliance. We find no violation of public policy and thus affirm enforcement of the limitation provision on the facts existing in this case. We further discern no ambiguity in the language of this provision and therefore perceive no basis to construe its limitation provision against defendant surety. The judgment of the Court of Appeals is affirmed. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J. Provision for accelerated judgment is found in GCR 1963, 116.1: "In a party’s first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds: "(5) the claim is barred because of release, payment, prior judgment, statute of limitations, statute of frauds, infancy, or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.” The provision reads as follows: "The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds: "(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.” The limitation provision in Sanders reads as follows: "(3) No suit or action shall be commenced hereunder by any claimant, "(a) After the expiration of one (1) year following the date on which principal ceased work on said subcontract it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” Sanders v American Casualty Co of Reading, Pennsylvania, 269 Cal App 2d 306, 309 fn 2; 74 Cal Rptr 634 (1969). One minor difference between the cases was that plaintiff Sanders had lodged various suits against several involved parties prior to the case at bar, one of which appears to have been brought in Federal court within one year of the date the subcontractor ceased work on the project. However, this fact would speak more strongly to granting plaintiff relief in Sanders than in the instant case simply because Sanders had demonstrated some degree of diligence in investigating and attempting to pursue his legal remedies against the defendants. See id., 307-308. Plaintiff Sanders and plaintiff in the instant case rely upon the California decision in Olds v General Accident Fire & Life Assurance Corp, 67 Cal App 2d 812; 155 P2d 676 (1945). In Olds, defendant insurer issued an automobile liability policy to Helmut Hardt covering an owned vehicle. Hardt subsequently injured third party William Kingston while driving the automobile. Kingston sued Hardt and recovered a substantial judgment. Some time afterward, Kingston died and Hardt fled the country. Plaintiff Olds, as represenative of decedent’s estate, then brought the present action. However, the action was commenced over one year after the right accrued, and defendant insurer cited as a bar to suit a provision in the policy limiting to one year the right of action. The District Court of Appeal rejected this argument and affirmed a judgment for plaintiff obtained below. The Court found that the limitation provision could not foreclose plaintiff or the decedent because neither had been parties to the insurance contract. The Court in Sanders distinguished this holding on the basis that the language in the Olds contract was found crucial to the conclusion reached in that the language clearly limited only actions by the insured, not actions by third parties. Language in both the Sanders contract and that involved in the instant case obviously differ and refer to limitation of actions by any claimant. In addition, the Olds Court found an express conflict between the private limitations period and the statutory provision. We face no such conflict in the present case. See text, infra. We also find several other grounds to distinguish the Olds case. The contract there was a personal injury liability insurance policy. Strong interests exist to protect parties in actions to recover such personal injury claims, and the equitable merits of allowing recovery by innocent third-party victims there speak persuasively against permitting possible technical forfeitures. We would also highlight the status and relationship of the parties in the instant matter. We deal here not with an innocent third-party automobile accident victim, but with a building subcontractor involved in a commercial venture. Furthermore, we are involved with a commercial tradesman whom the state has provided with a primary statutory remedy to insure recovery for lost labor and materials. See MCL 570.5; MSA 26.285. In Tom Thomas, the Court dealt with a distinct set of facts and legal problem. Plaintiff Thomas sued to recover damages resulting from the loss of films and tapes insured by defendant Reliance. The policy issued by Reliance contained a provision requiring commencement of action within one year of the discovery of the loss. In fact, loss occurred on December 14, 1971. Plaintiff brought suit on March 16, 1973. However, plaintiff reported the loss to Reliance on January 20, 1972, and filed proof of loss on March 7, 1972. Defendant eventually denied liability on June 22, 1972. The Court held that the running of the one-year limitation period was tolled from the date plaintiff gave notice of loss until liability was formally denied by Reliance. Under this ruling, plaintiffs suit was timely commenced. Thomas did not involve a third-party beneficiary claim. The party claiming loss was the party who had contracted directly with the insurer. The claim asserted was therefore the primary and exclusive remedy for the loss suffered, a remedy which plaintiff had paid Reliance to insure. In addition, the error asserted in Thomas was not that a one-year limitation period was unreasonable but that the time determined to commence the one-year period was improperly ascertained. Because of the peculiar delays inherent in the claims procedure and the actions of defendant insurer, we found an estoppel which served to toll the running of the limitation period during the time the insurer took to consider plaintiffs claim of loss. In the instant case, no such question appears in brief or argument and is inapplicable in a situation where defendant St. Paul had no direct dealings with Camelot prior to suit and where suit was not commenced until nearly a year and one half after contractor Priestly ceased work on the construction project. We thus find the specific holding in Thomas inapposite to the case at bar. As in Sanders, supra, plaintiff General Electric had commenced suit against defendant New Amsterdam in Federal court well within the year following the date work on the apartment ceased. Again, we find that this fact militates in favor of recovery in the subsequent state action there due to the continued diligence of plaintiff in seeking and pursuing all avenues of possible legal recovery. We note at this point that contractors involved in most governmental construction projects are required to obtain a performance bond. See MCL 129.201 et seq.; MSA 5.2321(1) et seq. Within the context of such public bonds, the statute provides a one-year limitation period for commencement of actions running from the date on which final payment was made to the principal contractor. MCL 129.209; MSA 5.2321(9). This limitation has been recognized by Michigan courts. Affiliated Bank of Middleton v American Ins Co, 77 Mich App 376; 258 NW2d 232 (1977). Authority exists to the effect that defendant insurer may be estopped from asserting, or be held to have waived, the time bar as a defense where the plaintiff has been allowed to rely upon some longer time period. See Burlew v Fidelity & Casualty Co of New York, 64 F2d 976, 977-978 (CA 6, 1933), cert den 290 US 686; 54 S Ct 122; 78 L Ed 591 (1933); Goosen v Indemnity Ins Co of North America, 234 F2d 463, 465 (CA 6, 1956); Reynolds v Detroit Fidelity & Surety Co, 19 F2d 110, 112-113 (CA 6, 1927). Under the facts of the instant case, however, nothing appears in the record to indicate any attempt on defendant insurer’s part to foster any kind of material reliance by plaintiff Camelot on a period of limitations different than that specified in the bond contract. See also Wesselman v Travelers Indemnity Co, 345 A2d 423, 424 (Del, 1975); Ottendorfer v Aetna Ins Co, 231 A2d 263 (Del, 1967); Murray v Lititz Mutual Ins Co, 44 Del (5 Terry) 447; 61 A2d 409 (1948).

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Blair Moody, Jr., J. Leonard Winford was initially charged with indecent exposure in violation of MCL 750.335a; MSA 28.567G). In the same complaint, defendant was also charged with being a sexually delinquent person at the time of the offense. MCL 767.61a; MSA 28.1001(1).1 Before trial the sexual delinquency charge was deleted on the assumption that the charge might properly be brought after trial on the principal offense of indecent exposure. The examining magistrate bound the defendant over on indecent exposure but deferred to the prosecutor the decision whether to return an information or take further action relative to the question of sexual delinquency. On June 12, 1973, trial was held on the principal offense and defendant was convicted by a jury On June 25, 1973, the prosecutor filed a supplemental information again charging defendant with being a sexually delinquent person. Defendant was tried by another jury separately empaneled to hear the sexual delinquency charge. 1234 The jury found defendant guilty. On the basis of this conviction, the court sentenced defendant to serve not less than one day nor more than life imprisonment. Defendant appealed to the Court of Appeals, challenging the prosecutor’s right to bring a charge of sexual delinquency subsequent to trial on the principal offense of indecent exposure. The Court of Appeals ruled that any charge of sexual delinquency must be brought in the original information charging indecent exposure. Consequently, because defendant was actually charged only after trial on the principal offense, the sexual delinquency proceeding against him was improper. The Court of Appeals therefore reversed defendant’s sexual delinquency conviction and dismissed that charge. 59 Mich App 404; 229 NW2d 474 (1975). We granted leave to appeal. 395 Mich 824 (1976). The question on appeal is whether in a case where defendant is convicted of the principal offense of indecent exposure under MCL 750.335a; MSA 28.567(1), the prosecutor possesses authority after trial to file a supplemental information charging sexual delinquency. We find no such authority and affirm the holding of the Court of Appeals. The charge of sexual delinquency must be dismissed. However, we do not fully agree with the reasoning employed to reach this result and so write to clarify our conclusion. I Defendant was convicted of indecent exposure. The statute defining this offense also provides the basis for charging defendant with being a sexually delinquent person at the time the offense was committed. MCL 750.335a; MSA 28.567(1) provides: "Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding said offense shall be triable only in a court of record.” The history of sexual delinquency legislation clearly indicates the Legislature’s intent to create a comprehensive, unified statutory scheme. This legislation was enacted to provide an alternate sentence for certain specific sexual offenses where evidence appeared to justify a more flexible form of incarceration. See People v Helzer, post, 404 Mich 410; 273 NW2d 44 (1978). To this end, the Legislature introduced language into several previously existing categories of sexual offenses to allow prosecution for sexual delinquency. 78 Additionally, sexual delinquency was included in the then-existing mental health code and the Department of Corrections Act. To help implement these statutory changes, the Legislature also separately enacted a definitional provision and a procedural provision as general guidelines in sexual delinquency prosecutions. The latter section which outlines the procedure to be used in such prosecutions is MCL 767.61a; MSA 28.1001(1): "In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person.” (Emphasis added.) The prosecutor relies upon the underscored language of the statute for authority to file a separate supplemental information charging sexual delinquency after conviction on the principal offense. The Court of Appeals rejected this analysis by concluding that this provision has no application to the procedure governing how the defendant is to be charged as a sexually delinquent person, and that MCL 750.335a; MSA 28.567(1), the section which defines the crime, is complete and self-sustaining. That court stated: "[t]he prosecutor can charge a person with indecent exposure or he can charge additionally that at the time of the offense the person was a sexually delinquent person. He cannot do both.” We disagree with both analyses. We find the procedure outlined in MCL 767.61a; MSA 28.1001(1) a necessary part of the integrated statutory structure the Legislature enacted to resolve the problem of sexually delinquent persons. This provision clearly complements and affects any such prosecution. Accordingly, we hold that this provision does not permit the prosecutor to file a sexual delinquency charge after trial to supplement the principal charge. However, it is within the prosecutor’s discretion before trial to simultaneously charge the principal offense and the sexual delinquency claim or to proceed solely with the principal offense. A reading of this procedural statute indicates that the indictment "shall” charge the principal sexual offense and "may also” charge sexual delinquency. In other words, the original charging instrument should "also” include any sexual delin quency claim that may be charged. We are persuaded that use of the word "may” in the statute simply refers to the discretion of the prosecutor to bring or not to bring the added charge. Consequently, no authority exists in this statutory provision, or in any other, allowing the prosecutor to file an information subsequent to trial on the principal offense. However, given the possible initial uncertainty about lodging so serious a charge against a defendant, we will allow amendment of the indictment or information prior to trial. Nevertheless, after trial on the principal offense begins, the prosecutor is held to waive any right to charge defendant with sexual delinquency. See People v Helzer, supra. II The procedure followed in this case violated the dictates of MCL 767.61a; MSA 28.1001(1). The supplemental information exposed the defendant unduly to the uncertainty and prejudice late charges can produce. The Court of Appeals is therefore affirmed in its reversal of defendant’s conviction of sexual delinquency and its dismissal of that charge. We need not consider defendant’s other claims of error. Affirmed. Williams, Levin, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J. MCL 750.335a; MSA 28.567(1) reads as follows: "Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding said offense shall be triable only in a court of record.” MCL 767.61a; MSA 28.1001(1) specifies the following: "In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in section 35 of chapter 8 of this act, and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense.” Defendant does not question the propriety of his indecent expo sure conviction. Therefore, this appeal is limited solely to the validity of defendant’s sexual delinquency prosecution. Evidence of the following eight prior criminal convictions was introduced to support the charge of sexual delinquency: 1. Detroit, September 27, 1950, window peeping. 2. Los Angeles, April 4,1952, rape. 3. Los Angeles, April 4,1952, burglary. 4. Battle Creek, November 13,1958, window peeping. 5. Battle Creek, December 15,1961, assault with intent to rape. 6. Battle Creek, May 10,1969, disorderly by obscene conduct. 7. Battle Creek, July 20,1970, larceny. 8. Battle Creek, June 12, 1973, indecent exposure. On November 9, 1973, defendant was sentenced to one year in the Calhoun County jail as a result of the conviction of indecent exposure. Two days later, defendant was sentenced to an indeterminate prison term for the sexual delinquency conviction. This dual sentence was improper. We have characterized the indeterminate penalty for a sexual delinquency conviction as an alternate form of sentencing. See People v Helzer, post, 404 Mich 410; 273 NW2d 44 (1978). Consequently, defendant can be sentenced only once. If sexual delinquency is an included part of the prosecution on the principal offense, then no sentence should be pronounced until that matter is completely resolved. See the indecent liberties statute, MCL 750.336; MSA 28.568, the rape statute, MCL 750.520; MSA 28.788, the assault with intent to commit rape statute, MCL 750.85; MSA 28.280, the incest statute, MCL 750.333; MSA 28.565, the gross indecency statutes, MCL 750.338, 750.338a, 750.338b; MSA 28.570, 28.570(1), 28.570(2), and the sodomy statute, MCL 750.158; MSA 28.355. MCL 330.54; MSA 14.844. MCL 791.33a et seq.; MSA 28.2173(1) et seq. See MCL 750.10a; MSA 28.200(1), which reads: "The term 'sexually delinquent person’ when used in this act shall mean any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.” We have determined that a charge of sexual delinquency is totally dependent for its prosecution upon conviction of the principal offense. We have also held that the penalty for conviction of sexual delinquency represents an alternate form of sentencing. See People v Helzer, supra. Consequently, though we require the prosecutor to include the sexual delinquency charge either in the original charging document or by amendment of the indictment or information before trial begins, the magistrate at the preliminary examination need only find probable cause to bind defendant over on the principal offense. The magistrate need not find probable cause as to the sentencing provision charging sexual delinquency. Where the prosecutor decides to charge defendant in the original indictment or information with sexual delinquency, he should bring the misdemeanor prosecution on the principal offense of indecent exposure in circuit court under the statute providing concurrent jurisdiction with district court. See MCL 767.1; MSA 28.941. If the prosecutor initially charges only indecent exposure and before trial decides to amend and charge sexual delinquency as well, then the entire proceedings would be subject to transfer to circuit court at that time. Defendant argues that an analogy exists between the procedure specified to charge sexual delinquency and the procedure used to charge in habitual offender proceedings. We reject the argument for reasons stated elsewhere. See People v Helzer, supra.

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Per Curiam. In Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118; 301 NW2d 275 (1981), we upheld the enforceability against a subcontractor of a contractual one-year period of limitation on suit in a labor and materials payment bond. In the instant case, we are asked to decide whether a provision in such a bond which prohibits a subcontractor from suing for 90 days after having last furnished labor or materials tolls the limitation period. We hold that it does not. I In this case, Territorial Construction, Inc., was the general contractor on a development project in Independence Township, Oakland County, owned by John C. Helveston. To protect Helveston against mechanics’ lien claims, Territorial obtained a labor and materials payment bond from Sentry Insurance. The bond named Territorial as principal and Sentry as surety, and contained the following pertinent provisions: "2. The above-named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work for labor was done or performed, or materials were furnished by such claimant, may sue on this bond for use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. "3. No suit or action shall be commenced hereunder by any claimant: "(b) After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” W. R. Armand, doing business as Armand Drilling & Dewatering Co., was employed by Territorial to perform dewatering services on the project. On November 5, 1974, both Armand and Territorial ceased work. On November 18, 1975, Armand filed the instant suit, claiming nonpayment for its services and seeking recovery on the labor and materials payment bond. Sentry’s motion for accelerated judgment on the basis of the expiration of the contractual one-year limitation period was granted by the trial court. The Court of Appeals reversed, holding that the provision in the bond which prohibited the claimant from suing for a 90-day period after having last furnished labor or materials tolled the limitation period. 90 Mich App 491; 282 NW2d 365 (1979). Sentry has applied to this Court for leave to appeal. II In reversing, the Court of Appeals relied on our decision in The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976). In that case, we construed facially similar provisions in an inland marine insurance policy. A limitation provision in the policy gave the insured 12 months in which to bring suit. Other provisions gave the insured 90 days in which to file a proof of loss, and gave the insurer an indefinite period of time in which to accept the proof of loss and pay the claim. We found that a conflict existed between the limitation provision and the proof-of-loss and payment-of-claims provisions because the limitation provision purportedly was intended to give the insured a full 12 months in which to bring suit and the proof-of-loss and payment-of-claims provisions had the effect of substantially shortening that period. To resolve this incongruity, we adopted the reconciliation approach of Peloso v Hartford Fire Ins Co, 56 NJ 514; 267 A2d 498 (1970), and held that the limitation period should be tolled "from the time the insured gives notice until the insurer formally denies liability”. 396 Mich 597. More recently, in In re Certified Question, Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22; 319 NW2d 320 (1982), we applied the Thomas-Peloso reconciliation analysis to substantially identical provisions in the statutory fire insurance policy. Although statutory rather than contractual, we concluded that the intent of the limitation provisión was the same: to give the insured a full 12 months in which to institute suit. Accordingly, we held that the same tolling occurred from the time the insured gives notice until the insurer finally denies liability. The Court of Appeals in this case found the provisions in the bond to be analogous to those in Thomas and concluded that they should be similarly construed. We hold, however, that this is not another conflicting provisions case and that the applicable analysis is found in our decision in Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, supra. In Camelot, we upheld a one-year period of limitation on suit in a labor and materials bond as applied to a subcontractor. We held that because the subcontractor was only an incidental third-party beneficiary to the private bond contract, the limitation period should be held valid and enforce able as to the subcontractor so long as it provided a reasonable amount of time in which the subcontractor could have protected its contractual rights. Despite the subcontractor’s claim in that case that it was unaware of the bond contract until after the limitation period had expired, we held that the one-year period was a reasonable amount of time in which the subcontractor could have discovered and protected its rights under the bond. Although this case might at first glance appear to be another conflicting provisions case like Thomas and Lumbermens, it is not. In both of those cases, we found that the limitation provision was intended to give the insured a full year in which to file suit. We found this intent in Thomas because the case involved a two-party insurance contract written by the insurer purportedly for the benefit of the insured. In Lumbermens, we found a similar intent in a statutory policy because the principal purpose of the Insurance Code is to protect policyholders. 413 Mich 38. The conflict in both cases arose because the proof-of-loss and payment-of-claims provisions had the effect of substantially shortening the period available to the insured in which to file suit. In the instant case, we discern no intent in the limitation provision of the bond to give the subcontractor a full year in which to file suit. Unlike the insured in Thomas and Lumbermens, the subcontractor is merely an incidental third-party beneficiary of a bond contract written for the benefit of others. The bond is written primarily to protect the owner of the project from mechanics’ lien claims. The subcontractor is included as a beneficiary merely as a means of better protecting the owner. The intent of the limitation period is not to give the claimant 12 months in which to bring suit, but, rather, to limit the surety’s obligation to one year after the principal ceases work. Because the surety’s contract is with the general contractor and not the subcontractor, it should be allowed to limit its liability to a definite period of time relating to the general contractor’s performance on the construction contract. Furthermore, the provision in the instant case that prohibits the subcontractor from filing suit for 90 days is presumably intended to give the principal and owner time in which to pay the claim. It is not a period over which the surety has any control and involves no contact between the claimant and the surety. Thus, it is not like the proof-of-loss and payment-of-claim periods in Thomas and Lumbermens " 'during which an insured’s right to bring suit is postponed * * * for the benefit of the company so that it can pursue its statutory and contractual rights’ ” and thus " 'ought not to be charged against the insured’s time to bring suit’ ”. Lumbermens, 413 Mich 35. Because there is no conflict or incongruity in the provisions of the bond, the reconciliation approach is inapposite. When reduced to its essence, this case presents the same question we addressed in Camelot: whether the contractually shortened limitation period in this case is valid and enforceable. Resolution of that question turns on whether the total amount of time available to the subcontractor was a reasonable amount of time in which to protect the subcontractor’s contractual third-party rights. The period of time available to Armand in this case was nine months. This was ample time during which it could have filed suit and protected its contractual rights. Accordingly, we hold that the contractually shortened limitation period in this case was reasonable and enforceable. In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand the case to the trial court for reinstatement of the accelerated judgment in Sentry’s favor. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. "[N]o action 'shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim * * *. ” 396 Mich 591-592. " '3. Notice of Loss: The Insured shall as soon as practicable report in writing to the Company or its agent every loss, damage or occurrence which may give rise to a claim under this policy and shall also file with the Company or its agent within ninety (90) days from date of discovery of such loss, damage or occurrence, a detailed sworn proof of loss. " '16. Settlement of Loss: All adjusted claims shall be paid or made good to the Insured within sixty (60) days after presentation and acceptance of satisfactory proof of interest and loss at the office of the Company.’ ” 396 Mich 596, fn 8. " 'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss’. " '[W]ithin sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss’. " 'The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company’.” 413 Mich 34-35.

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Williams, J. We granted leave to appeal especially to consider "whether the statute of limitations contained in MCL 418.361(2)(g); MSA 17.237(361)(2)(g) is constitutionally infirm on equal protection and due process grounds.” Subdivision (2)(g) reads: "(2) Total and permanent disability, compensation for which is provided in section 351 means: "(g) Permanent and total loss of industrial use of both legs or both hands or both arms or 1 leg and 1 arm; for the purpose of this subdivision such permanency shall be determined not less than 30 days before the expiration of 500 weeks from the date of injury.” (Emphasis added.) We hold that § 361(2)(g) does not violate equal protection or due process. The Legislature could legitimately create a separate category of persons suffering from permanent and total loss of industrial use in subsection (g), from those suffering anatomical or mental losses outlined in the other six categories of total and permanent disability, since that category is medically, factually, and legally distinguishable. Further, the Legislature could reasonably assume that permanent and total loss of industrial use would manifest itself within the statutory period of almost ten years. The decision of the Court of Appeals on this point is reversed. We, however, agree, but for different reasons, with the decision of the Court of Appeals to remand the matter to the Workers’ Compensation Appeal Board to determine in the light of all the pertinent testimony whether the Burke legal standard was met. I. Facts The facts in this case are undisputed. Plaintiff Carlton P. Johnson received 500 weeks of workers’ compensation benefits at a final rate of $45 per week for total incapacity arising from a 1959 injury to the right knee sustained while working for defendant Harnischfeger Corporation. Payments ceased on July 1, 1974. On August 14, 1974, plaintiff filed a petition for hearing with the Bureau of Workers’ Compensation, alleging total and permanent disability resulting from the loss of industrial use of both his legs under MCL 418.361(2)(g); MSA 17.237(361)(2)(g). Following a hearing and receipt of the deposition taken from plaintiff’s orthopedic surgeon, the hearing referee found plaintiff totally and permanently disabled as of September 17, 1974, the date on which plaintiff had visited his physician following the expiration of the limitational period, which was on July 1, 1974. Payments were ordered retroactive to July 2, 1974. This determination was unanimously reversed on January 18, 1977, by the WCAB. The pertinent part of the order read: "[P]laintiff has failed to sustain his burden of proof to show permanent and total disability.” The concurrent WCAB opinion, however, reversed, stating pertinently: "From our review of the record, we make a finding of fact that plaintiff did not sustain his burden of proof of industrial loss of use of both legs prior to the expiration of 500 weeks from the date of his December 1, 1964 injury.” The Court of Appeals, in its opinion of January 4, 1979, affirmed the WCAB. The opinion excerpted a sentence from the WCAB opinion as follows: "Plaintiffs testimony above, taken at face value, does not meet the test of Burke, supra, in establishing permanent and total disability.” Although "plaintiff’s testimony above” referred only to the plaintiff’s own testimony, disregarding that of his physician, Dr. Lyons, who also testified and whose testimony was considered by the WCAB after the above quotation, the Court of Appeals reached its conclusion on the basis of the plaintiff’s testimony alone as follows: "We hold, therefore, that the appeal board did not err in concluding that plaintiff had failed to meet his burden of proof under the Burke test.” In passing, we note that after considering Dr. Lyons’ testimony, the WCAB opinion concluded: "Plaintiff simply has failed to sustain his burden of proof * * * within the period provided by subsection (2)(g).” This negative disposition of the threshold issue precluded the necessity of consideration of the plaintiffs constitutional arguments by the Court of Appeals. This Court vacated the Court of Appeals judgment and remanded to the Court of Appeals, stating, "The Workmen’s Compensation Appeal Board’s finding that plaintiff had not sustained his burden of proof of loss of use of both legs within the period provided by MCL 418.361(2)(g); MSA 17.237(361)(2)(g) requires consideration of the constructional and constitutional issues raised by plaintiff.” (Emphasis in order.) The Court of Appeals, in its February 6, 1980, opinion on remand, concluded that § 361(2)(g) violated both due process and equal protection guarantees. The constructional issue was not addressed. Further, the Court stated that: "We assume that our affirmance of the factual determination of the appeal board [i.e., failure to satisfy Burke] is overruled sub silentio. * * * The Supreme Court must have * * * intended to overrule [our affirmance], else why would it issue its order requiring consideration of the constitutional issue if the disability issue already foreclosed the plaintiff from any possibility of prevailing?” 95 Mich App 384-385. We then granted leave to appeal, requesting the parties to address the constitutionality of the limitational provision in § 361(2)(g). II. Constitutionality of § 361(2)(g) Plaintiff’s principal contention is that § 361(2)(g) violates the constitutional guarantees of equal protection and due process. He asserts (A) that such discrimination against a class of claimants constitutes a denial of equal protection under any standard of review. He also argues (B) that due process is offended by denying the right to make a claim when the claim arises. The Court of Appeals was unpersuaded by defendants’ arguments that avoidance of stale claims is a reasonable basis for justifying the contested provision. Using the minimum rationality standard of review, the panel concluded that the potential for stale claims in other categories of total and permanent disability, with attendant problems of proof, eliminated any justification for the different treatment accorded claimants under § 361(2)(g). The Court of Appeals also held that subsection (g) denied due process largely on the ground that it could deny a worker the right to suit before his cause of action arose. We disagree. For purposes of considering the constitutionality of subsection (2)(g), we will accept the construction implicitly employed by the WCAB in its opinion, namely that a claim may be made after the 30-day period so long as the claimant can prove that permanent and total loss of industrial use [in this case of both legs] existed before the commencement of the 30-day period. Furthermore, we understand that this is the general practice of WCAB. Sevegney v Robbins Flooring Co, 1968 WCABO 366, 373. Besides, neither the defendant nor the plaintiff has contested this interpretation. Certainly, in the absence of such argument, at least for the purposes of considering the constitutionality of subsection (2)(g), this Court may properly pay deference to the WCAB’s construction. Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968). We begin our analysis by reviewing certain principles which have become axiomatic. First of all, legislation challenged on a constitutional basis is "clothed in a presumption of constitutionality.” Cruz v Chevrolet Grey Iron Division of General Motors Corp, 398 Mich 117, 127; 247 NW2d 764 (1976). As we noted in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975): "A classification will stand unless it is shown to be 'essentially arbitrary.’ Few statutes have been found so wanting in 'rationality;’ as to fail to satisfy the 'essentially arbitrary’ test.34 "34 From 1941 to 1970, the United States Supreme Court found economic legislation to violate the equal protection clause in only one case, Morey v Doud, 354 US 457; 77 S Ct 1344; 1 L Ed 2d 1485 (1957).” Second, the burden is on the objectors to show that the statute is arbitrary. We noted in McAvoy v H B Sherman Co, 401 Mich 419, 453-454; 258 NW2d 414 (1977), which dealt with the constitutionality of the "70% rule” for payment during appeal of workers’ compensation cases, that: "In the case at bar, it becomes immediately apparent that the thrust of the legislation challenged is primarily social and economic. The legislation involved deals with property rights, not fundamental rights. Therefore, the burden is on the appellants to show the classification is arbitrary and does not bear a rational relation to the object of the legislation.” Third, the proper standard to test equal protection or due process challenges to socioeconomic legislation was set forth for both as follows: "[I]n the face of a due process or equal protection challenge, 'where the legislative judgment is drawn in question’, a court’s inquiry 'must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it’. United States v Carolene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938). * * * [W]here the legislative judgment is supported by 'any state of facts either known or which could reasonably be assumed’, although such facts may be 'debatable’, the legislative judgment must be accepted. Carolene Products Co v Thomson, 276 Mich 172, 178; 267 NW 608 (1936).” Shavers v Attorney General, 402 Mich 554, 613-614; 267 NW2d 72 (1978). (A) Equal Protection Turning to the argument that the provision denies equal protection, the plaintiff bears a heavy burden. The plaintiff must show that the classification created by subsection (g) and the classifications created by subsections (a) through (f) are so arbitrary that they cannot be supported under any state of facts, either known or which could reasonably be assumed. Furthermore, if the facts are debatable, the legislative judgment must be accepted. Davey v Detroit Automobile Inter-Ins Exchange, 414 Mich 1; 322 NW2d 541 (1982). Plaintiff in the instant case, to prove unconstitutionality, must show either that there is no reasonable relation between the statutory limitation in subsection (g), loss of industrial use, and a legitimate governmental interest, or that the inclusion of the limitation in subsection (g), loss of industrial use, and not one in subsections (a) through (f), specific losses, is arbitrary and capricious. In Red fern v Sparks-Withington Co, 403 Mich 63, 79-80; 268 NW2d 28 (1978), this Court discussed at length the differences between various workers’ disability compensation benefit categories. This Court said: "There are two broad categories of workers’ compensation benefits: scheduled benefits and general disability benefits. Scheduled benefits are awarded for specific medical losses without regard to whether there is a reduction of wage earning capacity; in general they are payable for permanent loss of a specific anatomical member or function, e.g., a foot, hand, sight in one eye. General disability benefits are awarded for a loss of wage earning capacity even if there is no specific medical loss. "Devastating specific losses enumerated in the statute, e.g-, both legs or sight of both eyes, are deemed a 'total and permanent disability’. 'Incurable insanity or imbecility’ is so enumerated. "Sprute [v Herlihy Mid-Continent Co, 32 Mich App 574; 189 NW2d 89 (1971)] and Borg [v Fisher Body Division of General Motors, 1969 WCABO 1246] both make 'unfitness’ for employment a precondition to qualification for total and permanent disability benefits. "With the exception, however, of a distinctive category, 'loss of industrial use’ of limbs, added to the total and permanent disability definition after its original formulation, entitlement to compensation for total and permanent disability does not depend on whether the loss affects wage earning capacity. "Since scheduled benefits for all specific losses, major or relatively minor, are payable without regard to loss of wage earning capacity, except for the distinctive and atypical 'industrial use’ loss, it would not be consonant with the design of the act to regard wage-earning capacity as determinative of entitlement to total and permanent disability benefits for incurable insanity and imbecility alone.” Of particular importance to the instant case is the analysis that subsections (a) through (f), loss or paralysis of an anatomical member plus incurable insanity or imbecility, all differ from subsection (g), loss of industrial use. That difference is described as follows: "All the specific losses affect the quality of life apart from wage-earning capacity.” Redfern, supra, 81. Redfern certainly establishes that the specific-loss subsections differ from the "loss of industrial use” subsection. The question we must decide is whether that difference is reasonably related to the legislative requirement of a 30-day statutory limitation for the "loss of industrial use” subsection and not for the specific-loss subsections. More precisely we must decide whether plaintiff can show that in establishing such a relationship the Legislature acted arbitrarily. The proof or disproof of loss of industrial use is unlike that of specific loss. The latter requires the medical determination as to the loss or paralysis of anatomical members or incurable insanity or imbecility, whereas the former requires a determination whether or not as a result of an injury a worker can continue at his former work, which is something in addition to a normal medical diagnosis. The Legislature in its wisdom decided that the proof, disproof or review of loss of industrial use as of a particular date was susceptible to becoming more difficult or impossible with the passage of time between the date of injury and the focal date but that the proof or disproof of specific loss was not. We cannot regard this as an arbitrary decision. Generally speaking, the totality and permanency of the specific injuries described in § 361(2), subds (a)-(f) are readily apparent at the time of the accident or shortly thereafter. Of course, this is particularly true of loss of limbs. Medical verification of these afflictions is easily obtained. Loss of industrial use, however, may not be so readily apparent. The passage of very significant periods of time makes defense of loss of industrial use claims unfeasible, since it is difficult for employers to reconstruct the circumstances of the accident and its effect on the ability of the worker to do his work. Loss of industrial use requires proof of impaired wage-earning capacity. Such an impairment may arise from multiple sources other than a physical injury, including aging. Without imposition of reasonable time restrictions for such claims, it would be difficult, if not impossible, to determine whether the impairment is due to an employment-related injury. Petitions based on subjective medical conclusions, arrived at years after an injury, may accurately reflect the state of the claimant’s health, but they provide little opportunity for an employer to contest them in good faith. In addition, total and permanent disability claims implicate Michigan’s Second Injury Fund. Placing responsibility on the fund to pay differential benefits in cases which are not susceptible of a defense could compromise the fund and destroy its effectiveness. Avoiding the creation of indefensible claims through the passage of time is a valid and necessary objective for the establishment of a limitational period. Under such circumstances, we find it entirely appropriate that the Legislature provided "30 days less than 500 weeks” as a focal point to review a claim of permanent and total loss of industrial use. There is no violation of equal protection in interpreting § 361(2)(g) in . such a manner. (B) As we observed in Shavers v Attorney General, 402 Mich 554, 612-613; 267 NW2d 72 (1978), and repeated in O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 541; 273 NW2d 829 (1979), the test for equal protection and due process is essentially the same when reviewing socioeconomic legislation. In both cases, we said: "The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective. See Michigan Can ners & Freezers Ass’n, Inc v Agricultural Marketing & Bargaining Board, 397 Mich 337, 343-344; 245 NW2d 1 (1976). "The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same. As the United States Supreme Court declared in United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973): " 'Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.’ (Citations omitted.)” We have already shown that there is a reasonable relation between providing a statute of limitations in subsection (g) and none in subsections (a) through (f). Also it was indicated thát there is a reasonable governmental interest in establishing a statutory limitation for subsection (g), i.e., to avoid indefensible claims and to protect the stability of the Second Injury Fund. We believe that a goal of protecting the Second Injury Fund’s vitality can be legitimately taken into account in assessing the due process issue. In a similar context, involving the Silicosis and Dust Disease Fund, we rejected the due process argument in the following language: "First we note that the fund and related tax on employers is for a valid public purpose. The preservation of important segments of Michigan’s industrial base with the associated benefits to the state is a legitimate goal. This is especially true when the threat to these employers springs from statutory compensation requirements. As noted in an early unemployment compensation case, Carmichael v Southern Coal & Coke Co, 301 US 495, 514-515; 57 S Ct 868; 81 L Ed 1245 (1937): " 'the requirements of due process leave free scope for the exercise of a wide legislative discretion in determining what expenditures will serve the public interest.’ ” Stottlemeyer v General Motors Corp, 399 Mich 605, 614-615; 250 NW2d 486 (1977). The Legislature has determined that the public interest is best served by requiring Second Injury Fund payment of differential benefits only when a claimant can demonstrate total and permanent disability at a reasonable time. There is no violation of due process in such a reasonable legislative choice. The Court of Appeals, however, found a denial of due process, reasoning as follows: "To deprive employees whose industrial loss of use does not arise until after 500 weeks minus 30 days of both their statutory and common-law remedies before the right to bring suit is discovered would violate due process of law. Dyke v Richard, 390 Mich 739, 746-747; 213 NW2d 185 (1973). A statute which abolishes the right to sue before the cause of action arises is sustainable only if intended as an abrogation of a common-law cause of action. Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978). Such analysis is unreasonable in the instant case, as § 361(2)(g) was enacted for the purpose of defining a formerly unrecognized class of claimants. It is highly likely that when the Legislature added § 361(2)(g) to the act, defining a formerly unrecognized class of claimants, it included the statute of limitations as a means of confining the class to claimants with injuries that occurred within the last 500 weeks less 30 days and those injured in the future, thereby precluding resurrection of ancient claims by giving only prospective application to that section of the act. See Clark v Chrysler Corp, 377 Mich 140, 148; 139 NW2d 714 (1966), and Sanders v General Motors Corp, 80 Mich App 190, 194, fn 5; 263 NW2d 329 (1977). If the language was intended as a time limitation for the specific purpose of denying retroactivity, its continued presence is unnecessary.” (Footnote omitted.) 95 Mich App 388-389. We do not consider that Dyke is dispositive. The holding in Dyke is as follows: "Accordingly we hold that an action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.” 390 Mich 739, 747. The case at bar certainly does not come within Dyke’s prescription. First, it is not an action for malpractice. Second, the limitation is 500 weeks minus 30 days, not 2 years. Third, there is no showing that plaintiff in the exercise of reasonable diligence could not have timely discovered that he had suffered a permanent and total loss of industrial use, if indeed he did not discover it. Furthermore, Dyke was relied upon by the Court of Appeals in Oole v Oosting, 82 Mich App 291; 266 NW2d 795 (1978), aff'd 410 Mich 1; 299 NW2d 336 (1980), in its holding that a legislative decision to abrogate a cause of action after the passage of a period of time, when proofs grow stale, is not an unreasonable exercise of authority. Since the WDCA was, from its inception, designed to abrogate an employee’s common-law cause of action, Oole justifies and authorizes the time limitation imposed by § 361(2)(g). Incidentally, whether or not the Court of Appeals was right in reading Clark v Chrysler Corp, 377 Mich 140, 148; 139 NW2d 714 (1966), as construing subsection (g)’s second clause as only limit ing retroactivity of the section as a newly adopted act and not establishing a future statute of limitations, 95 Mich App 389, that conclusion was in effect overruled by the legislative re-enactment of the same limitational provision in § 361(2)(g) in the revision of the WDCA by 1980 PA 357. To conclude, we hold subsection (2)(g) satisfies due process. Ill The Court of Appeals, having found the statutory limitation in § 361(2)(g) unconstitutional, remanded the matter to the WCAB, because the WCAB had found that plaintiff had failed to demonstrate Burke disability within that statutory limitation. We affirm the remand for a different reason. Whether particular testimony meets the test of Burke in establishing permanent and total disability is a mixed question of law and fact and consequently subject to our review. See, e.g., Zaremba v Chrysler Corp, 377 Mich 226; 139 NW2d 745 (1966); DeGeer v DeGeer Farm Equipment Co, 391 Mich 96; 214 NW2d 794 (1974). See, also, Joseph, Causation in Workers’ Compensation Mental Disability Cases: The Michigan Experience, 27 Wayne L Rev 1079, 1094 (1981). The legal standard established in Burke v Ontonagon County Road Comm, 391 Mich 103, 114; 214 NW2d 797 (1974), reads as follows: "There is permanent and total loss of industrial use of both legs where, inter alia, "1. An employment-related injury in one or both legs causes pain or other condition that prevents use of both legs in industry. "2. The use of one or both legs, whether or not injured, triggers an employment-related injury or malady in any part of the body, including one or both legs, that causes pain or other condition that prevents use of both legs in industry.” The WCAB summarized its opinion that the Burke legal standard was not met in the following paragraphs: "Plaintiffs testimony above, taken at face value, does not meet the test of Burke, supra, in establishing permanent and total disability. Plaintiff says his left leg 'began to bother him’ around May of 1974. This statement is too vague for us to find as fact that at that time he had lost the use of that leg. Neither does the fact that plaintiff had been using a cane for three years meet the test of Burke, supra. ” "Dr. Lyons’ testimony that the first time plaintiff complained to him of his left leg was on September 17, 1974, two-and-a-half months after 500 weeks had expired, further helps defeat plaintiffs claim, particularly in light of plaintiffs testimony that Dr. Lyons was his only doctor. "Plaintiff simply has failed to sustain his burden of proof of total and permanent disability as required in the test of Burke, supra, within the period provided by subsection (2)(g).” The testimony’s reference exclusively to plaintiffs left leg undoubtedly arises from the fact that the WCAB had already found total incapacity because of plaintiffs right leg. See MCL 418.361; MSA 17.237(361). The WCAB, in concluding that plaintiffs testimony was "too vague” to meet the Burke legal standard limited its consideration to two points of evidence: (1) his left leg "began to bother him” around May of 1974; (2) his use of a cane for three years. If that were all the testimony there was, the WCAB’s conclusion might be justified. But the WCAB opinion indicates that the WCAB may not have properly applied the Burke legal standard, because other legally pertinent testimony was available. The other legally pertinent testimony is as follows. First, testimony of plaintiff: . 1— "I lose control of it [left knee] when I try walking”. 2— "I can’t bend, like a knee bend. I’m having trouble walking and also it bothers me when I even sit and watch TV or in bed.” 3— "They both [right and left knees] bothered me, sir”. Second, pertinent testimony of Dr. Lyons relating to the focal period of 30 days before 500 weeks: 1 — "A. Yeah. I did make a — here’s a note from ’73. I said my initial impression is that he shouldn’t be doing the type of work he did previously if he does a lot of walking. I said he could do a desk-type job or supervisory-type job if it did not involve a lot of walking. And this was discussed with him. ”Q. Your opinion hasn’t changed any at this time, has it, Doctor? "A. No, no.” The above additional testimony, all relating to conditions within the statutory period, certainly is much more specific than the WCAB’s statement that the plaintiff’s left leg "began to bother him”. In fact, it indicates that both legs were injured and that plaintiff’s injuries would prevent him from doing a job requiring a lot of walking, which his former job of foreman did require — his original injury even being caused by a fall from a ladder. He could only do favored work, which would not disqualify him from benefits attributable to the "permanent and total loss of industrial use of both legs”. Liesinger v Owen-Ames-Kimball Co, 377 Mich 158; 139 NW2d 706 (1966). The Burke legal standard could be said to be met if one considered the testimony adverted to except as to whether there is a causal connection between the original employment injury and the left knee injury. There is no indication of this consideration in the WCAB opinion. There is the following testimony relative to this legal requirement of Burke: "Q. O.K. Can you relate the — is there any casual [sic] connection between the left knee injury and his 1959 injury? "A. Well, most of the injury was on the right side at that time, but of course really at this stage the only way I could possibly relate it to that injury would be the fact that there’s been more stress placed on the left leg than on the right one because of he’s had to favor the right side, and if it’s related at all I’d say this could be a factor. The other possibility is whether or not he actually did injure it at the time of the original injury, but I don’t have very good documentation of the original injury to the left knee.” Whether this testimony, perhaps with the other testimony, in fact legally links the left knee to the employment injury requires WCAB determination, which does not appear in their opinion. It is for that reason we would remand to the WCAB. IV. Conclusion We hold that the plaintiff failed to show that § 361(2)(g) violates either equal protection or due process. The decision of the Court of Appeals is reversed as to the unconstitutionality of § 361(2)(g), but affirmed as to the order remanding the case to WCAB for determination consistent with this opinion on the merits. No costs, a public question. Kavanagh, Levin, and Blair Moody, Jr., JJ., concurred with Williams, J. 409 Mich 897 (1980). 1980 PA 357 renumbers the provision (3)(g) but the pertinent statutory language remains the same. Burke v Ontonagon County Road Comm, 391 Mich 103, 114; 214 NW2d 797 (1974). Apparently the closest thing to a definition of total incapacity is found in MCL 418.351; MSA 17.237(351), as follows: "While the incapacity for work resulting from a personal injury is total”. In practice, total incapacity is found by a referee in the first instance and may result, it appears, from any injury. Unlike "total and permanent disability” in MCL 418.361(2); MSA 17.237(361X2), total incapacity does not require the loss of or loss of industrial use of two members or incurable insanity or imbecility. Until the amendment of MCL 412.9; MSA 17.159 by 1965 PA 44, effective September 1, 1965, compensation for total incapacity could not exceed a period of 500 weeks. That amendment omitted the 500-week limitation and provided that "compensation shall be paid for the duration of the disability”, as does the present statute, MCL 418.351; MSA 17.237(351). Before 1965, compensation beyond the 500-week limitation was obtained upon a finding of permanent and total disability. Unpublished opinion, Docket No. 77-521, January 4, 1979. The Court of Appeals treated this statement as an alternate WCAB conclusion. "Furthermore, the board concluded that plaintiff had failed to prove permanent and total disability 'within the period provided by subsection (2)(g)’ ”. 406 Mich 1002 (1979). 95 Mich App 380; 289 NW2d 919 (1980). 409 Mich 897 (1980). Gose v Monroe Auto Equipment Co, 409 Mich 147, 162-163, fn 5; 294 NW2d 165 (1980), says this of subsection (g): "This provision is not a statute of limitations determining when a claim can be asserted, but rather a requirement that the permanency of the disability must be determined at a date within about 496 weeks of the date of injury.” While it may be argued pro or con whether the language of subsection (g) sets up a statute of limitations, the decision in the instant case assumes that a claim for total and permanent disability must be determined as of a date within about 496 weeks of the date of injury. ”Q. Mr. Johnson, I am not familiar with your background, but what was the nature of your occupation prior to your injury? "A. I was a foreman at Harnischfeger. ”Q. Did that require you to be on your feet quite a bit? "A. All the time except for the last time.”

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And the Court having also received the written consent of Judge Frankel to the imposition of a public reprimand, Joseph F. Eegnier, Executive Director, Judicial Tenure Commission. Marvin F. Frankel, in propria persona, respondent. Now, therefore it is ordered that the "Decision and Recommendation for Order of Discipline” is accepted by this Court and is adopted as its statement of censure. It is further ordered that this file shall be maintained as a public record.

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Williams, J. At issue in this wrongful death action is the trial court’s ruling which allowed defendant manufacturer to introduce evidence of citations for violations of safety and health standards promulgated under the Michigan Occupational Safety and Health Act (hereinafter MIO-SHA) issued to the nonparty employer of plaintiffs’ decedent because of decedent’s death. The trial judge, over the objection of plaintiffs before and during trial, allowed the employer’s safety engineer to read from a letter of an unknown Michigan Department of Public Health employee indicating that citations for MIOSHA violations were issued against the nonparty employer after decedent’s death was investigated by the Department of Public Health. It is plaintiffs’ contention on appeal that such testimony was prejudicial hearsay. The plaintiffs also argue that evidence of these citations should not have been admitted under Michigan case law which excludes evidence of a traffic ticket or citation in subsequent civil actions arising out of the same occurrence. We hold that the trial judge erred in allowing this evidence to come before the jury because it was prejudicial hearsay. MRE 801(c), 802. In addition, we hold that evidence of citations for violations of MIOSHA regulations issued to plaintiffs’ decedent’s nonparty employer is not admissible in this case when offered by a defendant manufacturer, because it is not material to the issues at trial. I. Facts On April 25, 1974, Brian Swartz, a 19-year-old employee of Baker-Perkins, was asphyxiated while cleaning a gimbal box which was a part of a large mixing machine manufactured by his employer, Baker-Perkins. Mr. Swartz was using a paint spray gun filled with Dowclene EC, a solvent which was manufactured by defendant Dow Chemical Company and distributed for industrial use by defendant McKesson Chemical Company. Prior to his death, the decedent had been spraying the inside of the gimbal box with the Dowclene chemical. Several hours afterwards, the decedent crawled inside the box to vacuum the residue left from the application of the chemical. Later, he was noticed missing by a fellow employee, and he was discovered lying unconscious inside the machine. Plaintiffs brought a wrongful death action claiming that the manufacturer and the distributor of Dowclene EC negligently failed to adequately warn of its dangerous propensities. The defendant Dow Chemical responded in part by answering that the sole proximate cause of the fatal accident was the negligence of plaintiffs’ decedent and of his employer. At trial, plaintiffs’ counsel, anticipating the introduction of evidence of the employer’s citations for violations of the MIOSHA regulations by defendant Dow Chemical, brought a motion in limine requesting the trial court to exclude such evidence. The trial court, after considering the argument, denied plaintiffs’ motion. Defendant Dow Chemical then called Baker-Perkins’ plant engineer and safety director to testify concerning the violations of the rules and regulations. On direct examina tion, he read into the record excerpts from a letter from the Michigan Department of Public Health which disclosed that his employer had been cited for violations of several regulations arising out of decedent’s death. At the conclusion of the trial, the jury returned a verdict of no cause of action in favor of both defendants. The plaintiffs appealed to the Court of Appeals which unanimously affirmed the verdict. That panel held that the introduction of evidence of the citations to decedent’s employer for purposes of barring plaintiffs’ recovery was not error. We granted leave to appeal in this case, directing the parties to brief the issues whether the trial court’s ruling which permitted the defendants to introduce evidence of citations for MIOSHA violations was error requiring reversal on the grounds of prejudicial hearsay and whether evidence of the citations was inadmissible as substantive evidence of conduct at issue in a civil case arising out of the same occurrence. II. Prejudicial Hearsay A. Alleged Hearsay The plaintiffs assert on appeal that objectionable hearsay statements were not excluded from the jury as prescribed by MRE 801(c) and 802. At trial, the plant engineer and safety director of Baker-Perkins, the decedent’s employer, which was not a party to this suit, read into the record excerpts from a letter from the Michigan Department of Public Health that "a citation for alleged violations for Rules 30 and 42 is enclosed”. The relevant testimony was as follows: "Q. Your investigation into this accident, did it disclose several violations of Michigan and federal regulations by Baker-Perkins? "A. Yes, it did. "Q. What violations were there, as found? "Mr. Polzin: Again, your Honor, I simply restate my objection to this. "The Court: I will overrule it. "A. The letter was sent by the [Michigan] Department of Public Health to Mr. William Stamm. "By Mr. Neering: "Q. Under the rules, we can’t have you reading correspondence. We won’t go into the reasons why. "Can you tell us what the findings were on these violations? "A. This investigation revealed that the employee assigned to clean the gimbal box and his rescuer were not provided the protection required. R 320.2430 [sic; 325.2430] and R 325.2442 and Rules 30 and 42. "Rule 30, Part 1, states: 'Before an unprotected person enters a process space, the atmosphere shall be thoroughly ventilated and tested to determine the presence of a respirable atmosphere. Precautions shall be taken to prevent the creation of a non-respirable atmosphere in the process space during the time that the person is inside.’ "Rule 30, Part 2, requires in the absence of ventilation or tests, persons capable, trained and equipped to perform rescue be stationed outside the process space to maintain surveillance over the man entering. "Rule 42 states where hazard exists because of atmospheres immediately dangerous to life or health, respi ratory protection equipment for the safeguarding of the worker shall be provided by the employer. "Photos showed liquid residue in the bottom of the box after the rescue and from the volatile nature of the sample from the bottom of the vacuum cleaner, it is most certain that a non-respirable atmosphere existed in the gimbal box at the time the victim entered the tank. "Surveillance was not maintained and a rescuer did not have protective equipment when he entered the tank. Accordingly, a citation for alleged violations for Rules 30 and 42 is enclosed. "Q. Were there also found to be violations of the OSHA, the federal regulations, as well as the Michigan regulations? "A. Yes, there was. "Q. Were they in substance on the same areas mentioned there that you just recited? "A. Practically the same thing. ”Q. So the violations relating to testing of the atmosphere was one thing, was it not? "A. Yes. ”Q. Lack of respiratory breathing equipment, right? "A. That’s right. ”Q. Lack of proper ventilation? "A. Right. ”Q. And lack of use of the buddy system? "A. Yes. I didn’t remember that, but I guess that’s part of it. ”Q. They used some big words there and a lot of them. That is what it boils down to? "A. Needed someone for rescuer, yes.” B. The Hearsay Rule Under MRE 801(c), we must decide whether out-of-court statements testified to by a witness in court which are offered as evidence to prove the truth of the matter asserted are hearsay. The witness for Dow Chemical testified before the jury about the written assertions made by an unidenti fied representative of the Michigan Department of Public Health which indicated that the nonparty employer was cited for plaintiffs’ decedent’s death. The plaintiffs claim that it was offered by the defendant to prove the truth of the matter asserted — that the nonparty employer was responsible for plaintiffs’ decedent’s death. When dealing with a hearsay problem, the emphasis centers upon the condition of cross-examination. Meaningful cross-examination has become a "vital feature” of the Anglo-American legal system. 5 Wigmore on Evidence (3d ed), § 1367, p 32. Underlying this rationale is the recognition that the value of many out-of-court statements is undercut because of the inability to test by cross-examination the veracity and competency of the out-of-court declarant from whom the witness has gathered his information. See generally Wigmore, § 1362, p 3. This Court, in Colgrove v Goodyear, 325 Mich 127, 134; 37 NW2d 779 (1949), recognized that the justification of the hearsay rule is the test of cross-examination. " 'The fundamental test, shown by experience to be invaluable, is the test of cross-examination. * * * It is here sufficient to note that the hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination.’ 5 Wigmore on Evidence (3d ed), § 1362.” It is the belief embodied in our legal system that cross-examination will expose and negate imperfections. The concern in the instant case over the inability to test by cross-examination is readily apparent from the record. When the witness on direct exam ination was asked whether he was aware of the relevant state and federal regulations which covered the employer’s responsibility in the decedent’s death, he indicated that he was not aware of many of the regulations. Yet his testimony, which included the reading of the health department’s letter, was allowed to go to the jury in order to influence a crucial element of the case when the accuracy of the out-of-court declarant’s letter and evaluation could not be tested by cross-examination. In fact, the in-court declarant, on recross-examination, did not even know whether the agency which administers the regulations had any authority over a manufacturer or seller of a product. Once a statement is found to be hearsay, it is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule. See Elliotte v Lavier, 299 Mich 353, 357; 300 NW 116 (1941). In the instant case, plaintiffs contend that no pertinent exceptions are found within MRE 803 or 804. Furthermore, defendant cites none to us, and we find none. The plaintiffs’ basic conclusion is correct. The only exception which is at all relevant to this inquiry is inapplicable on the facts of this case. MRE 803(8) allows statements from public records and reports to come into evidence over a hearsay objection. This rule, however, unlike FRE 803(8)(C), rejects the introduction in private civil actions of factual findings resulting from an investigation made in accordance with authority granted by law. Proposed MRE 803(8)(C), which was identical to FRE 803(8)(C), was found to be inconsistent with prior Michigan law and was rejected. Committee Note, MRE 803(8). C. Prejudicial Error The prejudicial effect of erroneously admitted testimony will vary from case to case, and its effect on the jury will depend on the facts and circumstances of each case. Once prejudicial error is found, this Court has adopted a rule of reversal. In Ilins v Burns, 388 Mich 504, 510-511; 201 NW2d 624 (1972), we stated: "Once prejudicial error is found, the cases call for reversal regardless of whether the trial judge gave an instruction in an attempt to cure the error. Potentially prejudicial error can be cured. Prejudicial error, however, implies a conclusion that the substantial rights of the party were affected. Such error calls for reversal and new trial.” (Footnote omitted; emphasis in original.) The basis for plaintiffs’ assertion of prejudice is found when analyzing the testimony of the witness who testified with respect to the MIOSHA violations. Defendant’s purpose in introducing the evidence of violations was to indicate to the jury that the negligence of the decedent’s employer was responsible for the decedent’s death. Obviously, this testimony was prejudicial. In fact, it was just about defendant’s entire case. Therefore, we hold that the out-of-court statements describing the citations for MIOSHA violations are prejudicial hearsay, and that they should have been excluded from the jury because they do not fall within a recognized exception to the hearsay rule. III. Immateriality In addition to the hearsay objection to the MIO-SHA citations, we raised the question whether the use of such citations is admissible as substantive evidence under Michigan case law in a negligence suit involving the same facts, but where the violations of MIOSHA regulations were not the gravamen of the lawsuit. Since such testimony does not relate to the issues in this case, rather than consider whether there is any applicable law on the merits, we hold that testimony to the effect that a complaint was issued for MIOSHA violations is inadmissible because such evidence is immaterial to the case. IV. Jury Instruction In the case at bar, the trial judge stated, as part of an instruction to the jury on the duty of defendant Dow that "[t]he law does not require a manufacturer to make its product accident-proof or foolproof’. The appellants claim that this instruction created a "straw man” which probably misled the jury in its deliberations. Elbert v City of Saginaw, 363 Mich 463, 482; 109 NW2d 879 (1961). The problem with this contention is that plaintiffs’ counsel, did not specifically object to this language at trial. The record indicates that the attorney for the plaintiff merely requested the trial judge to instruct the jury further that the concept of foolproof was not to be considered. This Court has made it clear that in the usual case an issue not properly raised or objected to at trial is not to be considered on appeal. The procedural justification for this rule is to provide the appellate courts with a sufficient record upon which to resolve the issue in a fair manner. People v Snow, 386 Mich 586; 194 NW2d 314 (1972), citing Meek v Wilson, 283 Mich 679, 689; 278 NW 731 (1938). Finally, the plaintiffs failed to raise this issue before the Court of Appeals, and they now ask this Court to grant them relief from alleged prejudice. The general rule is that a question may not be raised for the first time on appeal to this Court. Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). This rule is not fashioned in stone, but when a consideration of a claim is not necessary for a proper determination of a case, it will be applied. See Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965). See also Heider v Michigan Sugar Co, 375 Mich 490, 517; 134 NW2d 637 (1965) (Adams, J., dissenting). We think, therefore, that the issue raised should not presently be determined by this Court because it is not necessary in resolving the case. V. Conclusion In our opinion, it was error for the trial court to allow testimony concerning written statements made by an out-of-court declarant for the purpose of proving the truth of the matter asserted by an in-court witness. The inability of the plaintiffs to effectively cross-examine this unknown out-of-court declarant severely prejudiced their case, since the out-of-court statements indicated that there was another explanation of the fatality. We also hold that evidence of citations which deal with the violations of MIOSHA regulations by a nonparty employer, offered by a third-party manufacturer, is not admissible in this case because it is immaterial to the issues at trial. Accordingly, we reverse the decision of the Court of Appeals. Fitzgerald, C.J., and Kavanagh, Levin, Coleman, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J. The record seems to indicate that the conduct of the decedent’s employer violated regulations promulgated under both the Michigan Occupational Safety and Health Act and the federal Occupational Safety and Health Act. The federal act was passed December 29, 1970, and became effective 120 days after December 29, 1970. The Michigan act was approved on June 18, 1974, and became effective on January 1, 1975. The decedent died on April 25, 1974, so that the cited violations of the safety regulations included violations under the federal act and several Michigan provisions, MCL 408.852 et seq.; MSA 17.49(2) et seq., which were in effect before the Michigan Occupational Safety and Health Act became operative. For clarity purposes, however, we use the designation MIOSHA to refer to the violations of the various safety regulations because the testimony indicated to the jury, and it was briefed and argued in this Court, that the nonparty employer was cited for violating both occupational and safety acts. Moreover, MIO-SHA incorporated all regulations and standards promulgated under the federal act. See fn 3. A gimbal box weighs several tons. It is a machine base like a large box. It has a top which can open or shut and the box is eight feet wide. The federal Occupational Safety and Health Act, like the Michigan Occupational Safety and Health Act, is a creature of legislation. The major purpose of both acts is to regulate and reduce the exposure to dangerous conditions within a work environment, to impose an annual levy to provide revenue for safety education, and to provide remedies and penalties for violations. See 29 USC 651(b)(1)-(13); Preamble, 1974 PA 154, effective Jan. 1, 1975, MCL 408.1001 et seq.; MSA 17.50(1) et seq. Cf. Industrial Union Dep’t, AFL-CIO v American Petroleum Institute, 448 US 607, 641; 100 S Ct 2844; 65 L Ed 2d 1010 (1980). The Michigan act incorporates all federal standards which have been adopted or promulgated by the United States Department of Labor which were in effect at the time the act was adopted. MCL 408.1014(1); MSA 17.50(14)(1). When a rule or standard of MIOSHA is in conflict or covers the same area as the incorporated federal standard, the federal standard controls. MCL 408.1014(2); MSA 17.50(14X2). Swartz v Dow Chemical Co, 95 Mich App 328; 290 NW2d 135 (1980). 409 Mich 898 (1980). MRE 801(c) provides: " 'Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, olfered in evidence to prove the truth of the matter asserted.” MRE 802 provides: "Hearsay is not admissible except as provided by these rules.” Defendant Dow Chemical does not really address the hearsay issue in its brief. The defendant only argues that the admission of this testimony was not prejudicial. FRE 803(8)(O, like proposed MRE 803(8X0, provides: "P]n civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” The Michigan Trial Lawyers Association has filed an amicus brief, arguing that this Court, as a matter of public policy, should hold that the OSHA violations of a nonparty employer are not admissible when the defendant alleges the employer’s negligence as an unforeseeable intervening cause. See Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959). Defendant Dow responds that this was not their theory at trial, and this new issue misstates their position. We need not consider this argument as such testimony in this case is immaterial.

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Per Curiam. September 24, 1969, a three-judge panel of circuit judges ordered Sheldon II. Beck, a member of the State Bar of Michigan, suspended from the practice of law for one year. Mr. Beck appeals and raises four issues as the basis for appellate relief. A review of the record discloses ample support for the findings of professional misconduct on the part of Mr. Beck and justification for the order of suspension. None of the issues raised on appeal controvert the merits of the misconduct charges, and we find no reversible error in the proceedings below. Discussion of the issues raised on appeal would serve no purpose. Affirmed with costs to State Bar of Michigan.

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Blair Moody, Jr., J. The lengthy history of this case is as follows: 1. On August 24, 1968, a petition for workers’ compensation was filed by the plaintiff. 2. Hearings were held before Referee George Huber on May 6 and 27, 1969. 3. On July 14, 1969, the referee held that plaintiff was not entitled to compensation because he had not been peddling papers or acting as an employee of the newspaper at the time of the accident. 4. The Workmen’s Compensation Appeal Board (the board) affirmed the referee’s decision on November 10,1971. 5. The Court of Appeals, in an opinion authored by the now Justice Levin, reversed the board’s decision and remanded for further hearing before another referee. 42 Mich App 301; 201 NW2d 665 (1972). 6. On July 25, 1973, the new hearing was held before Referee Ray R. Ravary. 7. In a decision filed July 28, 1973, Referee Ravary opined that the plaintiff had suffered a compensable injury and ordered the defendant, Monroe Evening News, to pay compensation at the rate of $54 per week. 8. On March 12, 1975, the board, in a 4-to-l decision, affirmed the awarding of compensation but reduced the amount to $27 per week. 9. The Court of Appeals, in a 2-to-l decision, reversed the board’s decision, holding, as a matter of law, that the plaintiff was not employed by either the defendant or the substitute newsboy within the meaning of MCL 418.161(l)(b); MSA 17.237(161)(l)(b). 70 Mich App 407; 245 NW2d 769 (1976). 10. We granted leave to appeal on March 24, 1977. 399 Mich 869 (1977). This much-litigated and -appealed case stems from a simple fact situation. On February 4, 1966, Frank Handler was delivering the Monroe Evening News. Frank Handler was not the regular newspaper boy, but he substituted for Robert Edwards, the "owner” of the route, when Edwards participated in school athletic activities. Two five-year-old youngsters, Daniel Higgins, the plaintiff, and Frank Handler’s younger brother, Nicholas, accompanied Frank on a part of the newspaper route that day. While accompanying Frank Handler, the plaintiff sustained serious injuries when struck by a motor vehicle while crossing Elm Street in the City of Monroe. Throughout this litigation, two major fact questions surfaced: whether the plaintiff was actually delivering defendant’s newspapers when the accident occurred and whether he was promised remuneration for his efforts. Within the conceptual framework that defendant’s newspaper carriers are independent contractors, the second Workmen’s Compensation Appeal Board opinion answered these questions with specific findings of fact: "Under a contractual arrangement which had existed for approximately one (1) year prior to the injury involved herein, Frank Handler had agreed to act as a regular substitute for Bobby Edwards, a newsboy for defendant. For this service, Handler was paid approximately one dollar and fifty cents ($1.50) per day. In performing his end of the bargain, Handler had made use of the services of others, including his little brother and plaintiff, on a number of occasions as helpers in return for which he would buy them pop, candy or give them a dime. This use and hiring of substitutes and helpers by regular newsboys and substitutes was committed to and left within the absolute discretion of the carriers and substitutes by defendant. Indeed, the practice was not only well known to defendant but expected and required. Defendant neither claimed nor assumed any responsibility or control over the manner in which the newspapers were delivered or who delivered them. On the occasion of plaintiffs injury, February 4, 1966, plaintiff was helping Handler deliver newspapers, as he had in the past, for which assistance he had been promised remuneration in the form of either a bottle of pop, candy or a dime. ” (Emphasis added.) Findings of fact in workers’ compensation proceedings are conclusive in the absence of fraud, thus, we are bound by the board’s factual determination. Const 1963, art 6, § 28 and MCL 418.861; MSA 17.237(861). The dispositive issue in this case is whether a contract of hire existed between plaintiff and Frank Handler, the substitute newsboy. However, several related issues have been presented and considered by the board and the Court of Appeals; therefore, before reaching the dispositive question, four other issues will be addressed: 1. Is the applicability of the Worker’s Disability Compensation Act (the act) to an employment relationship dependent upon a minimum age requirement? 2. Is the applicability of the act to an employment relationship dependent upon a minimum wage requirement? 3. Assuming an employment relationship between plaintiff and defendant, was there a basis for concluding that plaintiff’s employment was illegal under the Hittle Juvenile Employment Act and, therefore, for awarding double compensation? 4. If the employment was not illegal because of the statutory exception created by MCL 409.14; MSA 17.714, is that provision of the Hittle Juvenile Employment Act unconstitutional as a denial of equal protection? We answer all four questions in the negative. The Worker’s Disability Compensation Act defines employee as: "Every person in the service of another, under any contract of hire, express or implied, including aliens, a person regularly employed on a full-time basis by his spouse having specified hours of employment at a specified rate of pay, working members of partnerships receiving therefrom wages irrespective of profits[,] a person insured for whom and to the extent premiums are paid based on wages, earnings, or profits, and minors, who shall be considered the same as and have the same power to contract as adult employees(Emphasis added.) MCL 418.161(l)(b); MSA 17.237(161)(l)(b). Thus, the statute expressly provides that minors (without age limitation) are to be considered employees and have the legal power to contract. If the Legislature intended to impose age barriers to compensability it could have expressly inserted such limitations in the appropriate statutory provisions. Nowhere in the act is there even a hint of age limitation, nor is there any judicial authority for such a proposition. Age may be considered as one factor among many when determining whether an employment relationship exists. However, once an employer-employee relationship is established, an employee may not be barred from compensation recovery because of age. Nor can the triviality of the consideration or remuneration to an employee be used as a barrier to receiving compensation. Neither the statutory provisions nor case law supports such a proposition. In fact, §418.371 which specifically provides for calculation of wage loss compensation for part-time employees refutes any allegation that a minimum wage or number of hours worked per week are necessary in order to receive compensation. MCL 418.371; MSA 17.237(371). The statutory provisions dealing with computation of compensation use a sliding scale based upon weekly wage loss with minimum and maximum rates, the maximum rates to be adjusted on an annual basis. MCL 418.351; MSA 17.237(351) and MCL 418.355; MSA 17.237(355). Therefore, we specifically hold that the amount of employee remuneration alone cannot act as a bar to disability compensation payments. Hearing Referee Ray Ravary found that the defendant was liable for double compensation because the plaintiff was too young to secure a work permit, thereby making his employment illegal. The act requires that the employment "be shown to be illegal” at the time of the injury for the employee to receive double compensation. MCL 418.161(l)(b); MSA 17.237(161)(l)(b). The board reversed the double compensation award after examining the existing statutes defining illegal juvenile employment. We agree with the reasoning of the board. Our statutes, MCL 409.14; MSA 17.714 3and MCL 409.28; MSA 17.728, create a "street trade” exemption for newspaper distribution from the gen eral rule that it is illegal to employ a minor who is too young to obtain a work permit. Since the employment of minors in "street trades” is not illegal, and the distribution of newspapers is a "street trade”, work permit requirements do not apply to paperboys. Plaintiff argues that this "street trade” exemption of the Hittle Juvenile Employment Act is an unconstitutional denial of equal protection. We adopt Court of Appeals Judge T. M. Burns’ succinct and accurate refutation of this argument: "Legislation is invalid on equal protection grounds if it creates classifications which are without reasonable bases and are purely arbitrary. Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). It is clear to me that there are rational bases for permitting children under the age of 14 to work as paperboys while generally prohibiting their employment in other occupations. The working hours and conditions of children who deliver newspapers are sufficiently distinct from those in other industries in which children were historically employed, and the perceived benefit of this type of work experience for children properly supports its encouragement. It is also reasonable to assume that the health risks and employment abuses which existed in other areas of child labor were considerably different in both kind and degree from that of newspaper distribution. "The legislative decision to permit children to deliver newspapers while generally prohibiting their employment in other businesses is reasonably related to the legislative goal of preventing child labor abuses. It was certainly not unreasonable for the Legislature to effectuate the distinction by making it an exception to a general rule of prohibition. MCL 409.14; MSA 17.714 is valid.” Higgins v Monroe Evening News, 70 Mich App 407, 418-419; 245 NW2d 769 (1976) (dissent). The final, dispositive issue in this case is whether the plaintiff was acting under a contract of hire with Frank Handler and, thus, an employee for purposes of the Worker’s Disability Compensation Act, at the time he was struck by the automobile and seriously injured. Factually, it was established that Frank Handler promised reward of a dime, bottle of pop, or candy to the plaintiff if he helped deliver the newspapers. Other testimony indicated that the plaintiff had actually delivered at least one newspaper to a house on the day of the accident and that it was not the first occasion on which plaintiff had assisted in delivering defendant’s newspapers. Based upon these facts, both Referee Ravary and the board found an assigned task (delivery of newspapers) and consideration offered (a dime, bottle of pop, or candy) amounting to a contract of hire. However, the Court of Appeals majority reversed the compensation award: "Certainly a literal reading of the statute in relation to the facts found by the board would incline us to find plaintiff an employee. However, we cannot follow this course where a literal interpretation would lead us to a result clearly contrary to the legislative intent. "On balance, we are convinced that the Workmen’s Compensation Act was never intended to provide compensation for a person in the position of this plaintiff. Consequently, we hold, as a matter of law, that plaintiff was not employed by either the defendant or the substitute newsboy within the meaning of MCL 418.161(1)(b); MSA 17.237(161)(1)(b).” Higgins, supra, 413, 415. We agree that under the circumstances of this case, an employment relationship did not exist between the parties. Although findings of ordinary facts are binding upon the Court if supported by any evidence, finding the requisite contract of hire in the instant case involves reaching a legal conclusion. Therefore, the board’s finding that a contract of hire existed between Handler and the plaintiff is reviewable by this Court. The existence or non-existence of the requisite contract of hire can be gleaned from only one source — Frank Handler, the substitute newsboy. The following testimony is representative of Handler’s explanation, on cross-examination, of plaintiff’s participation in delivering newspapers: ”Q. And before you went out on the route, you didn’t make any kind of an arrangement with him or make any kind of a deal where you said if you come on and help me with the papers, I’ll pay you so much, did you? "A. Let’s see. I was at the house. Nicky and Danny were there. ”Q. What were they doing? "A. I guess they were playing. ”Q. All right. "A. And I asked them if they wanted to go on the paper route with me. I asked them if they wanted to go and I told them that if they wanted to — I mean I told them I’d give them a dime or something or I’d buy them something if they went and helped me. That was down by the landing, just by the side door. ”Q. Now the reason that they were coming along with you is because your mother wanted to get them out of the house, isn’t that true? "A. Yes, I believe that, yes. "Q. Do you know why she wanted to get them out of the house? "A. Yes, I think Robin was sick or something. "Q. And who is Robin? "A. My little sister. "Q. So was that your mother’s — it was at your mother’s suggestion then that you asked them to get out of the house and come along, isn’t that correct? "A. Well, no. I don’t think so. She was going to get them out of the house and it was — you know, I’d give them something to do. She never told me, you know, why don’t you take the kids with you, no. ”Q. Now what specifically did you tell them you were going to give them at the time, if anything? "A. I told them I’d give them a dime or buy them a pop or something, candy bar. "Q. Did you list all these alternatives or are you saying that you might have offered or discussed one of these things? ’A. Do you mean I just asked them? You mean just told them I’d give them a dime or what? ”Q. What did you say? Did you give them a whole list of things that you might do? ’A. I told them if they wanted to go and help me I’d give them a dime or buy them a pop or a candy bar. ”Q. And did you then buy a candy bar for Nicky? ’A. Afterwards? "Q. Yes. ’A. No. ”Q. Did you give Nicky a dime afterwards? "A No. "Q. You didn’t give him anything, did you? 'A No. ” (Emphasis added.) As previously stated, the referee and the board majority found an assigned task (delivery of newspapers) and consideration offered (a dime, bottle of pop, or candy). From those two fact findings, the board concluded that a contract of hire existed between Handler and the plaintiff. This legal conclusion ignores a major principle of contract law. Valid consideration for a contract cannot be presumed merely because two parties receive benefit from each other. Rather, a bargained-for exchange is required. The essence of consideration, therefore, is legal detriment that has been bargained for and exchanged for the promise. Calamari, Contracts (1st ed), § 53, p 105. The two parties must have agreed and intended that the benefits each derived be the consideration for a contract. Thus, to reach the conclusion that a contract of hire existed, we must be able to state that each of the two parties, Handler and the plaintiff, intended to suffer a detriment to receive a benefit, and that they agreed to exchange those detriments and benefits. It must be found that Frank Handler promised payment to the boys in exchange for their help in delivering papers, and that the plaintiff agreed to help deliver the papers because in exchange he would receive a dime, bottle of pop, or candy. We cannot reach the legal conclusion that a contract of hire existed between Handler and the plaintiff upon accepting the factual findings of the board and reviewing all the testimony. To the contrary, Frank Handler’s testimony illustrates a social relationship, wherein he gratuitously promised to give the plaintiff a dime, bottle of pop, or candy if he helped Handler in delivering the papers. Handler stated that the boys went along to deliver the papers because his mother wanted the children out of the house. Handler repeatedly used the gratuitous term "give” when referring to the boys. "I’d give them something to do.” "I’d give them a dime or buy them a pop or a candy bar.” Handler did not "give” his little brother Nicky anything after delivering the papers on the day of the accident, illustrating a gratuitous promise rather than a contract of hire. Arthur Larson’s classic treatise on workers’ compensation law explains that normally the performance and acceptance of valuable service raises the implication that payment for services is expected and a contract of hire is formulated, however, in at least three common situations, circumstances negate the implication. 1A Larson, Workmen’s Compensation Law, § 47.41. The. present facts fit within the framework of the second category: "minor children helping their parents or others without an express contract of hire”. 1A Larson, Workmen’s Compensation Law, § 47.41(b). This distinction is not predicated upon a bias against children but upon a common sense recognition of the nature of the relationship. The rationale for this category is understandable. Children frequently "help” neighbors and relatives run errands and do odd jobs, while receiving minor gratuitous rewards. Usually these associations are not based upon an employment relationship. Although we view this unfortunate injury to the plaintiff sympathetically, we do not find the requisite contract of hire. The Court of Appeals is affirmed. Costs to appellee. Williams and Coleman, JJ., concurred with Blair Moody, Jr., J. Ryan, J. (to affirm). I agree with both Justices Moody and Kavanagh that the "street trade” exemption of the Hittle Juvenile Employment Act, MCL 409.14; MSA 17.714, does not constitute an unconstitutional denial of equal protection. In addition, I agree with Justice Moody that the Court of Appeals decision in this case, which found as a matter of law that plaintiff was not employed by either defendant or the substitute newsboy, must be affirmed. I reach that conclusion for a different reason, however. While this Court is bound by the factual findings of the Workers’ Compensation Appeal Board, Const 1963, art 6, §28 and MCL 418.861; MSA 17.237(861), there is no evidence in the record of this case, or the facts found by the board, to sustain the legal conclusion that plaintiff was "* * * in the service of another, under any contract of hire, express or implied * * MCL 418.161(l)(b); MSA 17.237(161)(l)(b). Consequently, notwithstanding our compassion for this seriously injured child, there is no entitlement to workers’ compensation benefits. Kavanagh, C.J. (to reverse). Facts This is a workers’ compensation case in which plaintiff appeals to this Court from an adverse ruling in the Court of Appeals. 70 Mich App 407; 245 NW2d 769 (1976). On February 4, 1966, Robert Edwards, the regular newscarrier for defendant Monroe Evening News, arranged for his substitute, Frank Handler, to complete a portion of his paper route. Accompanied by his five-year-old brother, Nicholas, and his brother’s five-year-old friend, plaintiff Daniel Higgins, Frank Handler set out to deliver papers. While on the paper route five-year-old plaintiff Higgins was struck by a car and is now, as a result of his serious injuries, a paraplegic. On August 24, 1968, plaintiff filed a petition for benefits under the Worker’s Disability Compensation Act. After the initial hearing, the referee held that plaintiff was not entitled to compensation because he had not been peddling papers and hence was not an employee of the News at the time of the accident. This decision was affirmed by the Workmen’s Compensation Appeal Board. The Court of Appeals reversed and remanded for further consideration. Higgins v Monroe Evening News, 42 Mich App 301; 201 NW2d 665 (1972). After hearing on remand, the referee held that plaintiff had suffered a compensable injury as an employee of the News and awarded him benefits of $54 per week. On appeal, the board affirmed but limited plaintiff’s benefits to $27 per week. Testimony taken during the hearing conflicted with respect to certain critical facts: (1) whether plaintiff Higgins at the time of the accident or at any other time had actually delivered papers for substitute Handler and (2) whether Handler had promised plaintiff compensation for his assistance. The board found affirmatively on both counts and said in its opinion: "The testimony establishes that a promise of consideration in the form of remuneration by way of a dime, bottle of pop or some candy was made to plaintiff in return for his help in delivering newspapers and that this had not been the first time that plaintiff had helped.” 1975 WCABO 456, 470. The Court of Appeals again reversed, holding that the Worker’s Disability Compensation Act "was never intended to provide compensation for a person in the position of this plaintiff”. Higgins v Monroe Evening News, supra, 70 Mich App 415. This Court granted leave to appeal to consider the following three issues. I Are factual fíndings of the Workmen’s Compensation Appeal Board binding on a reviewing court? Michigan appellate courts will not disturb the factual findings of the Workmen’s Compensation Appeal Board unless there is an absence of record support for those findings. Carter v Kelsey-Hayes Co, 386 Mich 610; 194 NW2d 326 (1972), Braxton v Chevrolet Grey Iron Foundry Division of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976). Const 1963, art 6, § 28 provides that "[findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law”. MCL 418.861; MSA 17.237(861) provides that: "The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board, if application is made by the aggrieved party within 30 days after such order by any method permissible under the rules of the courts of the laws of this state.” In the instant matter the referee found, and the board affirmed the findings, that plaintiff was an employee of Frank Handler, who was an employee of Robert Edwards, who was an independent contractor hired by the defendant to deliver papers. Since there was evidence in the record to support these factual findings we will not disturb them. II Is the "street trade” exemption provision of the Hittle Juvenile Employment Act unconstitutional as a denial of equal protection? The hearing referee agreed with plaintiff’s contention that because plaintiff was too young to secure a work permit, his employment was illegal and he was therefore entitled to double compensation under MCL 418.161(l)(b); MSA 17.237(161)(l)(b). The Workmen’s Compensation Appeal Board reversed that determination, finding plaintiff’s em ployment legal under the "street trade” exemption for newscarriers. MCL 409.14; MSA 17.714. Since the majority opinion of the Court of Appeals found as a matter of law no employment relationship between plaintiff and defendant, the remaining issues, including the instant one, were not addressed. We agree with the appeal board’s disposition that plaintiff’s employment was legal because it falls within the "street trades” exemption to the Hittle Juvenile Employment Act. Further, we find no merit in the plaintiff’s contention that the "street trades” provision works a denial of equal protection by denying all newscarriers the protection afforded other minors under the Hittle Juvenile Employment Act. Because we find his reasoning cogent, we adopt the position taken by Court of Appeals Judge T. M. Burns in his dissenting opinion: "Legislation is invalid on equal protection grounds if it creates classifications which are without reasonable bases and are purely arbitrary. Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). It is clear to me that there are rational bases for permitting children under the age of 14 to work as paperboys while generally prohibiting their employment in other occupations. The working hours and conditions of children who deliver newspapers are sufficiently distinct from those in other industries in which children were historically employed, and the perceived benefit of this type of work experience for children properly supports its encouragement. It is also reasonable to assume that the health risks and employment abuses which existed in other areas of child labor were considerably different in both kind and degree from that of newspaper distribution. "The legislative decision to permit children to deliver newspapers while generally prohibiting their employment in other businesses is reasonably related to the legislative goal of preventing child labor abuses. It was certainly not unreasonable for the Legislature to effectuate the distinction by making it an exception to a general rule of prohibition. MCL 409.14; MSA 17.714 is valid.” 70 Mich App 407, 418-419; 245 NW2d 769 (1976). Ill Did the Court of Appeals err in holding as a matter of law there was no employment contract between plaintiff and defendant? The Court of Appeals reversed an award of compensation ordered by the Workmen’s Compensation Appeal Board, finding as a matter of law no employment relationship between the parties to this litigation. Whether a contract of hire may be inferred from the conduct, language or other pertinent circumstances of a relationship is a matter of fact which may not be prescinded from the factfinder if any of the facts are in dispute. See Chaffee v Stenger, 361 Mich 57; 104 NW2d 805 (1960); Holcomb v Bullock, 353 Mich 514; 91 NW2d 869 (1958); and Erickson v Goodell Oil Co, Inc, 384 Mich 207; 180 NW2d 798 (1970). The facts and legitimate inferences were in dispute here and the board resolved the dispute, finding a contract of employment existed. The Court of Appeals majority refused to give effect to the literal language of the statute, saying: "Certainly a literal reading of the statute in relation to the facts found by the board would incline us to find plaintiff an employee. However, we cannot follow this course where a literal interpretation would lead us to a result clearly contrary to the legislative intent.” (Citations omitted.) 70 Mich App 413. Without the assignment of any ambiguity in the portion of the act they construe, the Court of Appeals nevertheless concluded that the Legislature could not have intended coverage of the plaintiff in this case. As a general rule, statutory language is construed consistent with its plain meaning. Only when statutory language is found to be ambiguous are reviewing courts free to look to legislative intent in an effort to understand and give effect to the words used. Here the Court of Appeals majority did not state what the "legislative intent” was nor how they determined it. Neither did they point out a basis for their conclusion that the finding of a contract of employment would be clearly contrary to it. We have carefully considered People v McFarlin, 389 Mich 557, 563; 208 NW2d 504 .(1973), cited by thé Court of Appeals, and find it inapposite. We do not find the statute’s definition of employee ambiguous: "Every person in the service of another, under any contract of hire, express or implied, including * * * minors, who shall be considered the same as and have the same power to contract as adult employees.” (Emphasis supplied.) MCL 418.161(l)(b); MSA 17.237(161X1)0»). Neither do we find it necessary to consider some unstated legislative intent. An employment relationship does not turn on whether an employee depends upon the contract for his livelihood or whether his motive in entering into it was to obtain remuneration. Accordingly we reject defendant’s argument that because plaintiff here was supported by his parents and was motivated by social rather than monetary considerations no contract of employment existed. The tender age of plaintiff here should not influence the determination of employment, for the statutory direction that minors be considered the sáme as adult employees with the same power to contract makes age irrelevant. Defendant’s contention that the promise of "a dime, bottle of pop, or candy bar” cannot constitute consideration for a contract is also unpersuasive. Carriers delivering newspapers deal in pennies. Handler, the substitute carrier, was paid approximately $1.50 a day by Edwards for delivering papers. It is consistent with that scale of compensation that Handler’s helpers would be paid smaller amounts for their less responsible and less time-consuming efforts. There are other facts in the record which provide support for the board’s finding that plaintiff is an "employee” within the meaning of the act. The newspaper business relies primarily upon youngsters for door to door delivery. Testimony given at the hearing by the individual who acted as its treasurer, secretary and business manager established that the defendant, Monroe Evening News, required its regular carriers to find substitutes when they were unable to work. "Q. So you do know that Bobbie Edwards is permitted to hire substitutes to go out and take care of his job for him? "A. It is his responsibility to find somebody else to carry his route if he is not there. ”Q. You do not exercise any supervision over that activity? "A. That is right. "Q. He can have whoever he wants? "A. That is right, he can have his grandmother. "Q. And age is no bar? ’A. No, because we have no responsibility as to who carries the paper. We go into a contract with whoever and it is up to him to find a substitute.” 1975 WCABO 472-473. The board properly found that the substitute carriers and helpers, such as Higgins, were part of defendant newspaper’s distribution system. Defendant could have guarded against the use of very young helpers by limiting or supervising the carrier’s authority to hire substitutes and helpers. The board observed:. "It is not our function to engage in an exercise in apologetics for the realities of the relationship created between defendant and its carriers. This looseness in method of operation is the creation and responsibility of defendant. Different rules could have been established but were not. Having, created the system, defendant must assume responsibility for the legal consequences.” 1975 WCABO 471-472. We do not share the fear expressed by both defendant and the Court of Appeals that affirmance of the award in the instant matter will dangerously extend the act into an "entirely new dimension”. 70 Mich App 414. We share the conviction expressed by the appeal board: "Given the facts there is nothing astonishing or earthshaking about the result reached herein.” 1975 WCABO 472. The board’s factual determination that a contract of employment existed between plaintiff and defendant warrants the award to plaintiff of benefits for injuries sustained in the course of his employment. The judgment of the Court of Appeals is re versed and the award of the Workmen’s Compensation Appeal Board reinstated. Costs to appellant. Levin and Fitzgerald, JJ., concurred with Kav-ANAGH, C.J. Levin, J. (to reverse). The act defines the term "employee” as meaning "[e]very person in the service of another, under any contract of hire, express or implied, including * * * minors, who shall be considered the same as and have the same power to contract as adult employees.” MCL 418.161(l)(b); MSA 17.237(161)(l)(b) (emphasis supplied). Imposing on youngsters a higher burden of proof or persuasion and applying a more stringent standard of appellate review than for adults, as would the lead opinion, conflicts with the legislative directive that minors "shall be considered the same as” adult employees. (Emphasis supplied.) Although the claimant in the instant case was not an adult, the question is "the same”: was the claimant in the service of another under a "contract of hire”? Age may not be considered as a factor "when determining whether an employment relationship exists”. I The lead opinion states that there could be no "contract of hire” unless the substitute newsboy and Higgins "agreed” to an exchange of intended benefits and detriments, and unless Higgins so agreed "because” in exchange he would receive a dime, bottle of pop, or candy. A workers’ compensation claimant, adult or minor, need not, however, show either an "agreement” with his employer or that but for promised compensation he would not have performed the work. A contract of hire need not be bilateral, it may be unilateral: an offer of compensation which may be accepted by doing the expected work. If such an offer is made and. the expected work is performed, there is a contract of hire although there was no bilateral agreement and although the worker might have performed the work gratuitously, if asked to do so, out of a desire to be helpful or to satisfy some personal desire of participation in the enterprise or other motivation. An employer who has offered compensation may not refuse to pay benefits to an injured worker who performed expected work because there was no bilateral agreement, nor may he seek to prove that the worker might have performed the work gratuitously if the employer had asked him to do so and had not offered or promised compensation. Moreover, Higgins proved to the satisfaction of the WCAB that compensation was offered dr promised, from which it would be reasonable to infer i) that it was thereby sought to induce him to work, ii) that he was thereby so induced, iii) that he worked "because” of such inducement, and iv) that such inducement and work were an intended exchange of "benefits” and "detriments”. Assuming that Higgins must show that he worked "because” of the offer or promise of compensation, it was for the WCAB, not this Court as a matter of law, to resolve that factual issue and in so doing draw the inferences in the application of the principles adverted to in the lead opinion to the evidence produced by the parties. II The sense of the act is that where the work of the principal (Monroe Evening News) is contracted out to an exempt or uninsured employer it is as responsible as if the injured worker has been "immediately employed” by it. Therefore to focus on the Handler-Higgins relationship is too narrow. Newspaper publishing is a business that extensively employs youngsters to deliver to the door. Newscarriers indisputably are entitled to the benefits of the workers’ compensation act; it is a question of fact, not of law, whether, at the time of injury, Higgins was engaged in such work under a contract of hire as part of the distribution system of the Monroe Evening News. A newspaper employee testified that if a carrier was absent for a day, "[t]hey would ask him to either get a substitute or they would replace him”. He also said "when they can’t deliver the papers, it is up to them to find a substitute”. "[H]e can have his grandmother.” A practice developed of using helpers. The newspaper did not limit carrier authority to hire substitutes and helpers, nor did it supervise the hiring. In the situations adverted to in the lead opinion, where claimants who contributed their services were denied compensation, the entire class of workers to which the injured worker belonged were regarded as volunteers who worked gratuitously. Higgins, in contrast, was doing the same work that others who would be entitled to benefits were doing. It is not appropriate to deny benefits as a matter of law because Higgins was younger and what he was to receive was of lesser value or because there would be no coverage had he been doing like work for a friend or neighbor rather than as part of the newspaper’s distribution system. The expressed concern about workers’ compensation liability being imposed upon parents or neighbors for household chores performed by youngsters is misplaced; under the act "no private employer” is liable to any person who is employed by him as a "household domestic servant for less than 35 hours per week for 13 weeks or longer during the preceding 52 weeks” and a "wife, child or other member of the employer’s family residing in the home” is specifically excluded from the definition of "household domestic servant”. The question whether exceptions should be made to the general scope of coverage for service at charitable or patriotic institutions has been the subject of legislation in a number of states and of judicial opinions reaching varying results in the same and differing factual situations. The Court need not today intimate a view regarding the scope or legitimacy of exceptions for social situations, or where the service is rendered to a charitable or patriotic organization. The implication of broad and undefined exceptions into the workers’ compensation jurisprudence of this state is inappropriate. The business of publishing a newspaper has none of the earmarks of a social, charitable or patriotic undertaking. It is not expected that anyone, even if young or very young, will deliver newspapers gratuitously. This conceptual framework is adopted in the instant case for two reasons: (1) Throughout the litigation the relationship between the defendant and its newsboys has been treated factually as one of principal — independent contractor. (2) The issue presented is not the nature of this relationship, the distinction between employees and independent contractors, but the existence of the employment relationship itself. "Nothing in this act shall apply to or prohibit any minor from engaging in: “(a) Street trades, except as prohibited under section 23. "(b) Domestic work or chores in connection with private residences. "(c) Farm work. "(d) Employment in a trade in which the parent or duly appointed guardian of such minor is self-employed. “(e) Employment in a business owned and operated by such parent or guardian. For the purposes of this provision, a business shall be deemed to be owned by such parent or guardian if he is either the sole owner, partner or stockholder therein and shall be deemed to be operated by him if he devotes substantially all of his normal working hours to the operation of such business. "In the event that such minor is required by law to attend school, then such work may only be performed outside of school hours. "(f) Employment on a camp site of a nonprofit corporation engaged in citizenship training and character building during periods of school vacations.” MCL 409.14; MSA 17.714. "The term 'street trade’ shall be deemed to refer to any 1 or more of the following occupations: "(a) Soliciting subscriptions for newspapers, magazines or other periodicals; "(b) Distributing, selling or offering for sale newspapers, magazines, periodicals, advertising matter; "(c) Boot blacking; "(d) Selling or offering for sale of popcorn, peanuts, candy, fruit and soft drinks in concessions owned and operated by a boy scout troop, girl scout troop, or any other youth organization. "Provided, That the same is conducted in a public place.” MCL 409.28; MSA 17.728. See MCL 418.171; MSA 17.237(171), concerning the liability of an employer who contracts with another person. In Hall v State Compensation Insurance Fund, 154 Colo 47; 387 P2d 899 (1963), where it was held that a Blue Lady "was rendering services as a volunteer”, Blue Ladies as a group were held to be exempt, not a particular Blue Lady. Similarly, see Enderby v Industrial Commission, 12 Wis 2d 91; 106 NW2d 315 (1960). MCL 418.118; MSA 17.237(118). See 81 Am Jur 2d, Workmen’s Compensation, §§ 116 et seq., pp 801 et seq.; 99 CJS, Workmen’s Compensation, §§ 69 et seq., pp 285 et seq. The exception adverted to in one of the cases cited in the lead opinion is statutory, Camphill Village USA, Inc v Workmen’s Compensation Board, 23 NY2d 202; 243 NE2d 739; 296 NYS2d 129 (1968); and in another case the court declared that a factual finding that the services were not undertaken pursuant to a contract of hire should be sustained, Enderby v Industrial Commission, supra.

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Fitzgerald, J. Plaintiffs in this malpractice case appeal from a jury verdict of no cause of action against defendants. Three issues are raised by plaintiffs’ application for leave to appeal: 1) Whether the conduct of defendants’ counsel, in interjecting improper innuendos of a conspiracy between plaintiffs’ counsel and expert witnesses to render untrue and collusive testimony, deprived plaintiffs of a fair trial and required granting of a mistrial or a new trial. 2) Whether the sudden interruption of plaintiffs’ counsel’s closing argument by someone seeking emergency medical attention from defendant physicians, and the subsequent viewing by some of the jurors of defendant physicians’ administering medical treatment to a woman lying on the floor of a nearby courtroom resulted in denial to plaintiffs of a fair trial and required the granting of a mistrial or a new trial. 3) Whether the trial court committed reversible error by refusing to instruct the jury that defendant hospital was negligent as a matter of law in allowing an intern, not licensed to practice medicine in Michigan, to provide medical care. The Court of Appeals answered these questions in the negative and affirmed the jury verdict of no cause of action. We disagree on the first issue and reverse. I. Facts Plaintiffs in this medical malpractice case are the parents and guardian of a now permanently and irreversibly brain-damaged child, Kyle Kern. Defendants are the hospital and physicians who took part in the child’s care when he was brought to them for diagnosis and treatment. On August 14, 1969, Kyle, whose age was then 14 months, became sick at his stomach and began to vomit. The child’s father came home from work around 6 p.m., and his mother called defendant firm of pediatricians. One of the firm’s physician employees advised Mrs. Kern to take the child to St. Luke’s Hospital emergency room. At the hospital emergency room the child was examined by defendant Dr. James Adams, a medical school graduate who had just begun his internship in July of 1969. Dr. Adams took a history of the child which indicated that the child had been vomiting repeatedly with the vomitus becoming greenish. Dr. Adams performed an examination of the child and concluded that the child had gastroenteritis, an irritation of the stomach and intestines. The child was given a Compazine supposi tory and prescribed a light diet of skim milk and baby aspirin every four hours. Mr. and Mrs. Kern took their child home, and the child slept in their room throughout the night. When Mr. Kern got up and went to work at 7 a.m. on the following day, the child was still sleeping. However, at 11 a.m., after being fed some skim milk, the child began vomiting again. Mrs. Kern called defendant firm of pediatricians and received further dietary instructions. In a later call, made after the child could not keep down either skim milk or cola, Mrs. Kern was told to bring the child to the pediatricians’ office. He was there examined by defendant Dr. Jarvi and defendant Dr. Heaven-rich. A mass seemed to be present in the child’s abdomen, and a possible bowel blockage by intussusception was diagnosed. Arrangements were then made for the child’s immediate admission to the hospital. At the time of admission, the admitting intern, Dr. James O’Brien, had a telephone consultation with Dr. Jarvi and sent Kyle to St. Luke’s Department of Radiology for a barium enema. The barium enema and X-rays were done by defendant Dr. Caumartin. Dr. Caumartin felt an abdominal mass before the barium enema but could not detect a mass afterwards. The X-rays and barium enema did not indicate an intussusception or bowel blockage, although Dr. Caumartin saw a small rounded shadow which he perceived to be a polyp. Dr. Caumartin reported these findings by telephone to Dr. Jarvi. On the evening of August 15, 1969, Dr. Jarvi visited Kyle in the hospital and brought in defendant Dr. Rice, a surgeon, to join in the child’s care. Dr. Rice felt a round mass in the child’s abdomen and recommended that the barium enema be repeated. On the following morning, Saturday, August 16, 1969, Dr. Rice found that the barium enema had not been repeated, but due to what he perceived to be the child’s improved condition, he no longer thought it was necessary. However, Mr. and Mrs. Kern testified that they were at the hospital from 11 a.m. to 7 p.m. on Saturday and that the child was listless, sick, and vomiting. Kyle’s parents further testified that during this eight-hour period, their son was not seen by a physician. Dr. Rice indicated that he thought he saw the child on Saturday night, when he performed an appendectomy at St. Luke’s Hospital, but the hospital’s operating room records showed that no such surgery was performed on the evening of August 16, 1969. On Sunday morning, Kyle’s condition became worse, and at noon Dr. Rice operated. He found a bowel blockage by intussusception with about six inches of intestine gangrenous, which he removed and then rejoined the bowel. Kyle’s postoperative recovery appeared to be normal, and his parents went home, but were called back when the child’s temperature became extremely high due to the gangrene. As a result, Kyle suffered permanent and irreversible brain damage and is now totally disabled. Plaintiffs filed suit against defendants claiming that defendants were negligent in not diagnosing and treating Kyle in a timely manner and that such negligence was the cause of Kyle’s permanent and irreversible brain damage. During the trial, which lasted from May 29, 1974 to June 26, 1974, plaintiffs introduced testimony of two physicians from Philadelphia and one physician from New York to support their claim that defendants failed to diagnose and treat the bowel blockage in a timely manner. A fourth physician, Dr. Feltoon, assisted plaintiffs in the preparation of the case, but was not called as a witness. Defendants’ experts, who were from Saginaw, Midland and Detroit, testified that there was no negligence in the diagnosis and treatment. The jury returned a verdict of no cause of action. On September 17, 1974, the trial court denied plaintiffs’ motion for a new trial. The Court of Appeals affirmed on August 25, 1976 (unpublished per curiam, Docket No. 21789). Leave to appeal was granted by this Court on April 29, 1977. 399 Mich 893 (1977). II. Issues Plaintiffs argue that they were denied a fair trial by the conduct of defendants’ counsel in interjecting improper innuendos, not based in the evidence, of a conspiracy between plaintiffs’ counsel and expert witnesses to render untrue and collusive testimony. The Court of Appeals held that in view of the length of the trial and the volume of the record (almost 2,500 pages), the remarks about which plaintiffs complain did not constitute reversible error. We disagree. Throughout the trial defendants’ counsel attempted to show that plaintiffs’ counsel and plaintiffs’ medical advisor, Dr. Feltoon, had conspired with three out-of-state physicians to provide "bought and paid for” testimony. Defendants’ counsel repetitively probed for evi dence of a conspiracy to render untrue and collusive testimony during cross-examination of plaintiffs’ experts, but were unable to elicit any such evidence. On May 31, 1974, the third day of the trial, plaintiffs called the first of their three medical experts, Dr. Kaplan, a neurologist from New York City. On cross-examination, Dr. Kaplan was questioned as follows: ”Q. Is this the first time you had met Mr. Dean was a conference in New York? "A. Yes. "Q. How did Mr. Dean happen to come to you? "A. Originally? ”Q. Yes. "A. I have no idea, I think you better ask him. ”Q. I would like to ask you. "A. I don’t know. "Q. Did you inquire of him out of all the neurologists in the world he happened to walk into your office in New York City? ’’A. I did ask him — I may have asked him, I don’t recall. Sometime ago. I will say this, that I have seen over the past 25 years a large number of problems that have medical-legal aspects in terms of injuries to the nervous system. "I am a consultant for the City of New York in this kind of problem although I don’t know if that has anything to do with it. "Q. We will get into your medical-legal experience, Doctor. "Did anyone else contact you before Mr. Dejan contacted you to arrange this conference with Mr. Dean? "A. Not that I recall, not that I recall. "Q. Did Mr. Dean call you personally to ask for an appointment or did he merely call your nurse or receptionist and ask for an appointment? "A. I don’t recall that. I think perhaps most likely he spoke to me initially to discuss the case and problems and whether I would be willing to review the medical records. "That is usually what might happen. This is not the first time I reviewed medical records of problems. "I think thereafter on the basis of my review of the medical records arrangements were made to examine the child. ”Q. Do you know when you had this conference with Mr. Dean? "A. I don’t recall the exact date, I don’t have it here, but within the last two or three months. "Q. Is the first time you had a conference with Mr. Dean? "A. A physical confrontation, yes. "Q. Yes? "A. That’s correct. ”Q. Have you talked to any other medical personnel . about this case before meeting with Mr. Dean? "A. No, sir. ”Q. I notice you discussing something with a gentleman in the back, do you know who that is? "A. Dr. Feltoon. I met him last night. "Q. Dr. Feltoon? "A. Yes. "Q. You did not know Dr. Feltoon before? "A. Before last evening? ”Q. Last night. "A. No. "Q. Did you stay in one of the local motels? "A. I did, at the Holiday Inn East, I think it is. ”Q. Dr. Feltoon stayed at that motel? "A. I believe so, yes.” After detailed questioning about the amount of testimony Dr. Kaplan had provided in malpractice cases and his experience in medical-legal matters, defense counsel returned to the subject as follows: ”Q. Doctor, once again, you have no idea how Mr. Dean happened to contact you? "A. No, I don’t.” On the next day of trial, plaintiffs’ counsel, anticipating a continuation of this defense strategy, sought to confine defense counsel to proper impeachment questions and moved in chambers that "counsel for the defense be instructed not to ask irrelevant and immaterial questions regarding the relationship of the plaintiffs’ expert witnesses, namely Dr. Chodoff and Dr. Edeiken, as to any — in such a way as to reflect any impropriety or conspiracy or improper actions; that Dr. Feltoon is not going to be with us [sic, a witness] in this case”. The court reserved ruling on this objection and allowed defendants’ counsel to continue along their line of inquiry. On the same day plaintiffs presented the testimony of Dr. Chodoff, a general surgeon from Philadelphia. On cross-examination defense counsel continued their inquiry as follows: "Q. Doctor, when did you first receive notification of this lawsuit? ”A. Couple years ago, I don’t remember the exact date. ”Q. How did you become aware of this lawsuit? "A. Frankly, I do not remember now, it has been so long ago, I think Mr. Dean contacted me but I am not 100 percent certain. ”Q. How did it happen Mr. Dean contacted you? 'The Court: If you know. "A. If I know, no, I don’t know. I can speculate, but I don’t know. "Q. Has he contacted you in the past? "A. No. "Q. This was the first time he had ever contacted you? "A. Yes, sir. "Q. Do you know Dr. Feltoon? "A Yes, sir. ”Q. Have you worked with Dr. Feltoon on numerous malpractice lawsuits? "A. No, I know him socially. ”Q. You know him socially? "A. Yes, sir. ”Q. Might it be Dr. Feltoon arranged for you to meet with Mr. Dean? "A. As I said, I don’t know, it may be possible. ”Q. You have no memory one way or the other? "A. No, I haven’t, really, it’s too long ago. ”Q. Two years ago? "A. At least two years ago.” It is clear that despite the zeal and persistence of defense counsel in their search for a conspiracy among plaintiffs’ attorney, medical advisor, and expert witnesses to render collusive and untrue testimony, all that was revealed by cross-examination was that some of these physicians had known each other in the past or presently knew each other casually or by reputation. However, defense counsel did not abandon this strategy for want of a reasonable basis in evidence, but instead, during their final argument, continued to inject this false issue for the jury’s consideration. Returning to the question of why plaintiffs had happened to consult with Dr. Kaplan, defense counsel rhetorically asked: "How did Mr. Dean find you, of all the neurologists in the United States; of all the neurologists in Grand Rapids, in Detroit, Highland Park, any place in Michigan, any place in the United States? How did Mr. Dean suddenly call up one day, on Sixth Avenue in New York City, and say, 'Dr. Kaplan, come testify for me, come examine this baby. Don’t do a darned thing for the baby; don’t talk to the doctor, don’t find out what’s being done for him, just get on that stand and say the baby is going to live forever.’ "I asked him, and I made this big gesture (indicating) 'How in the whole world did Mr. Dean know to call you,’ and his answer was, 'I don’t know. Ask Mr. Dean.’ ” In reference to Dr. Edeiken’s testimony, defense counsel stated: “Now, first of all, why did he come here? He’s head of the Department of Radiology. He’s the Chief of the Department. This isn’t his field of radiology, although he is a competent, trained radiologist. "He says, 'In my hospital we have a specific pediatrics radiologist who does this kind of thing.’ Well, if he’s the Chief, if he’s the head, and he really thought something was wrong or that pediatric radiologist — why didn’t he tell that pediatric radiologist to come on down? Maybe it has something to do with the strange Dr. Feltoon in the courtroom, his social friend who he went to medical school with; the same Dr. Feltoon that Dr. Chodoff knew.” Defense counsel also referred to plaintiffs’ expert medical witnesses as "those three cohorts” who had come to court to testify against their clients. Similarly, defense counsel referred to plaintiffs’ expert Dr. Chodoff as "the fellow that came in here to do my client in. That’s kind of blunt but that’s what he is here for. * * * Now I’m not going to knock anybody but he came all the way here from Philadelphia to do Dr. Rice in * * * .” After defendants’ closing argument, plaintiffs’ counsel moved for a mistrial because of defense counsel’s reference to the "strange Dr. Feltoon”, or in the alternative a curative instruction. In declining to grant a mistrial, the court stated: "The Court: Yes, I’m doubtful that that’s legitimate argument to a jury. To permit a jury to speculate on something like that would, in the opinion of the court, be improper, but I’ll let you answer it any way you like. "If you had objected at the time, the court could have ruled on it at that time and told the jury to disregard it. To revive it at this stage of the proceedings is, in the opinion of the court, not necessary or warranted by the circumstances.” During his final summation, plaintiffs’ counsel attempted to respond to the unsubstantiated insinuations of defense counsel relating to the testimony of out-of-state physicians by discussing the difficulty in obtaining the assistance of local physicians in the preparation of a malpractice case. Defense counsel objected to plaintiffs’ counsel arguing the "conspiracy of silence” on the basis that there was no evidence in the record of such a conspiracy. The court agreed, stating that it "would not permit an argument of that kind”. The record discloses that, by the time the jury retired to deliberate upon a verdict, defendants’ counsel had succeeded in conveying the message that plaintiffs would not have relied entirely on out-of-state physicians to testify for them had their case been a meritorious one. In Wayne County Board of Road Commissioners v GLS LeasCo, 394 Mich 126; 229 NW2d 797 (1975), a condemnation case involving a similar "battle of experts”, this Court reversed a verdict for plaintiff upon finding that the improper con duct of plaintiffs counsel, in attacking defendant’s witnesses by "innuendo and unfounded accusation” of rendering collusive and untrue testimony, had deprived defendant of a fair trial on the merits. With respect to plaintiff Wayne County’s strategy of attacking defendant’s expert witnesses, this Court stated: "These comments represent more than the mere reproof of recalcitrant witnesses. They constitute unjustified, direct attacks on the integrity and honesty of LeasCo’s witnesses. There is no evidence that these witnesses testified falsely, withheld information when stating that they did not know the answer to counsel’s questions, or manufactured false evidence. "Witnesses should not be subjected to personal attacks and unsubstantiated insinuations. Each party is entitled to present its case on the merits, free from remarks of opposing counsel which may prejudice the jury and divert its attention from the real issues.” 394 Mich 126, 134. Defendants rely on Firchau v Foster, 371 Mich 75; 123 NW2d 151 (1963), which involved an appeal from a trial court’s refusal to grant a new trial because plaintiffs counsel had referred to defendant as a "leech and a parasite”, to support their argument that their remarks concerning plaintiffs’ experts were within the limits of proper argument. However, we find that defendants’ reliance on Firchau is misplaced. While this Court acknowledged that "common experience seems to be that such breaches of good manners are more detrimental to the actor than the accused”, we went on to say: " 'Counsel may, acting on their own judgment as to propriety and good taste, discuss the character of witnesses, the probability of the truth of testimony given on the stand, and may, when there is any reasonable basis for it, characterize testimony.’ [Citation omitted.] "But where language is such as evinces a studied purpose to inñame or prejudice the jury, based upon facts not in the case, this Court has not hesitated to reverse.” 371 Mich 75, 78-79. (Emphasis added.) In the instant case, we do not view defendants’ remarks concerning plaintiffs’ experts as being merely "breaches of good manners”; we perceive a studied purpose to prejudice the jury and divert thegurors’ attention from the merits of the case. We are not confident that the verdict in the case at bar would have been the same had defendants’ counsel not continuously raised the groundless charge, by direct attack and innuendo, that the "bought” testimony of plaintiffs’ out-of-state expert witnesses was collusive and untrue. In a case as close and sharply contested as the instant one, we cannot believe that plaintiffs had a fair trial where defendants’ counsel succeeded in characterizing plaintiffs’ witnesses as "professional experts” who made their living traveling around the country as a trio providing "bought” testimony. We find that this accusation, which had no basis in evidence, was so prejudicial as to require a new trial. Since we reverse and remand for a new trial on the basis of the first issue raised by plaintiffs, we find it unnecessary to address the issue of whether the sudden interruption of plaintiffs’ closing argument by a person seeking emergency medical treatment denied plaintiffs a fair trial. The likelihood of a recurrence during a new trial of the type of interruption which was visited upon the trial proceedings is remote in the extreme. The last issue on appeal is whether the trial court committed reversible error by refusing to instruct the jury that defendant hospital was negligent as a matter of law in allowing an intern, not licensed to practice medicine, to provide medical care. The Court of Appeals held that an intern working in a hospital emergency room is not "practicing medicine” within the meaning of the then-applicable medical licensing statute,* * but is participating in a postgraduate training program. We agree. The fact that the completion of a one-year internship is itself a prerequisite to licensure negates a contrary ruling. We reverse and remand for a new trial. Costs to plaintiffs. Kavanagh, Williams, Levin, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J. A blockage caused by a telescoping of the bowel or intestine. “[A] general, descriptive term used with reference to any mass of tissue that bulges or projects outward, or upward, from the normal surface level, thereby being macroscopically visible as a hemispheroidal, spheroidal, or irregularly mound-like structure growing from a relatively broad base or a slender stalk.” Stedman’s Medical Dictionary, (4th lawyer’s ed), p 1120. It is interesting that in response to the suggestion that defense counsel had indirectly raised the issue of "conspiracy of silence”, defense counsel stated: "No, I didn’t; I didn’t. What I argued was the fact that these guys were bought-and-paid-for witnesses that ran around in a group and testified all over the country. That’s why I said, 'Who are these guys?’ Not that he couldn’t get anybody from any place else.” That the studied injection of a false issue to prejudice the jury may require a new trial, see, also, Morrison v Skeels, 16 Mich App 727; 168 NW2d 644 (1969); Lapasinskas v Quick, 17 Mich App 733; 170 NW2d 318 (1969); and Kakligian v Henry Ford Hospital, 48 Mich App 325; 210 NW2d 463 (1973) (opinion of V. J. Brennan, J.). 1899 PA 237; MCL 338.51 et seq.; MSA 14.531 et seq. was repealed by 1973 PA 185; MCL 338.1801 et seq.; MSA 14.542(1) et seq. See Rush v Akron General Hospital, 84 Ohio L Abs 292; 171 NE2d 378 (Ct App, 1957), which held that interns working in hospitals are not in violation of the state’s medical licensing statute.

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Per Curiam. The trial court and Court of Appeals upheld a provision in an automobile owner’s liability insurance policy excluding recovery for bodily injury by the insured owner who was a passenger in the car as against a driver who was driving with the owner’s permission. The driver of the car has applied for leave to appeal. Defendant Emily Sivey and her father co-owned a 1974 Ford Pinto which was insured by plaintiff State Farm. On March 3, 1974, Sandra Andary was operating the Pinto on 1-94 in Berrien County when she collided with a vehicle owned and operated by William Horace Kelly. Emily Sivey was a passenger in the Pinto at the time. Emily Sivey filed suit against Kelly and Andary in Macomb Circuit Court seeking damages for her injury. Andary claimed that she was protected by the policy issued by State Farm to Emily Sivey and her father. Consequently, State Farm filed a complaint for declaratory judgment, asking that the court find that the insurance policy "does not provide bodily injury liability coverage to the defendant, Emily Sivey, with regard to her accident injuries of March 3, 1974”. Andary responded with a prayer that the "company be ordered to provide a legal defense and liability coverage to the defendant Sandra Andary”. Plaintiff moved for summary judgment under GCR 1963, 117.2(3) and, on February 17, 1976, the trial judge granted the motion. The Court of Appeals affirmed in an unpublished per curiam opinion dated April 22, 1977. Andary repeats here the argument she advanced in the courts below: (1) that the policy exclusion State Farm relies upon is ambiguous and, therefore, should be construed against the insurer; and (2) that, in any event, the exclusion is void as contrary to public policy. The State Farm insurance policy issued to Emily Sivey and her father provides, in part: "Section I — Liability and Medical Payments Insuring Agreements "Coverage A — Bodily Injury Liability "Coverage B — Property Damage Liability "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of "(A) bodily injury sustained by other persons, and "(B) property damage, caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned motor vehicle; and to defend, with attorneys selected by and compensated by the company, any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable hereunder even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient. "Exclusions — Section I "This Insurance Does Not Apply Under: "(h) Coverage A, to Bodily Injury to Any Insured or Any Member of the Family of an Insured Residing in the Same Household as the Insured; "Definitions — Section I "Insured — the unqualified word "insured” includes "(1) the named insured, and "(2) if the named insured is a person or persons, also includes his or their spouse(s), if a resident of the same household, and "(3) if residents of the same household, the relatives of the first person named in the declarations, or of his spouse, and "(4) any other person while using the owned motor vehicle, Provided the Operation and the Actual Use of Such Vehicle Are With the Permission of the Named Insured or Such Spouse and Are Within the Scope of Such Permission, and "(5) under coverages A and B any other person or organization, but only with respect to his or its liability for the use of such owned motor vehicle by an insured as defined in the four subsections above.” (Insurance policy’s emphasis.) The insuring clause and the exclusionary clause excerpted above reveal unambiguously that Sivey and Andary are named insureds under the policy and that State Farm is bound to insure the named insured with respect to bodily injury sustained only by persons other than the named insured. Since State Farm has promised to pay on behalf of the insured claims for bodily injury sustained by other persons, the terms "insured” and "other persons” must be read with reference to each other. In view of the fact that the word "insured” as used in the insuring clause is not qualified by any additional language, we must apply the above definition of the word "insured” according to the direction of the policy. The term "other persons” stands in contrast to and is mutually exclusive with the term "insured”. "Other persons” means those not having the status of the insured. The exclusionary clause corroborates this interpretation of the insuring clause by stating plainly, "This Insurance Does Not Apply * * * to Bodily Injury to Any Insured Since we have concluded that the exclusionary clause, if valid, would preclude Emily Sivey from recovering from State Farm pursuant to the policy, we must now address the question of whether the exclusionary clause is void as against public policy. The argument that such an exclusionary clause contravenes public policy was considered and rejected by a majority of the Court of Appeals panel in Weisberg v Detroit Automobile Inter-Insurance Exchange, 36 Mich App 513; 194 NW2d 193 (1971). Specifically, the majority in that case found that an exclusion for named insureds in an automobile insurance policy did not violate either the Motor Vehicle Accident Claims Act or § 3010 of the Insurance Code. Then judge, now Justice, Levin dissented. In dissenting, he argued that the operation of such an exclusionary clause serves to render the driver of an automobile under circumstances such as are extant in the instant case uninsured for liability purposes. This, according to the dissent, contravenes the public policy of the Motor Vehicle Accident Claims Act which seeks to reduce claims against the Accident Claims Fund and the motor vehicle responsibility law which requires that an owner’s policy of liability insurance "[s]hall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles”. Specifically, the dissent argued: "Without a requirement that the insurance cover the driver as well as the owner, in any case where the insurance covers only the owner and the damages assessed against the owner and the driver exceed the amount recoverable from the owner, the injured person could proceed against the fund if the driver did not pay the excess. By requiring that the owner’s insurance cover the driver as well as the owner the Legislature sought to reduce claims against the accident claims fund arising out of unpaid claims against drivers. "One of the exclusions expressly permitted by the financial responsibility law is of 'liability fpr damage to property owned by, rented to, in charge of, or transported by the insured’. (Emphasis supplied.) This express authorization of an exclusion for damage to the insured’s property and the failure to authorize an exclusion for personal injury caused an insured further supports the view that no distinction may properly be drawn in the required personal injury insurance coverage based on whether the insured or someone else is injured or on whether the injury was caused by a driver using one vehicle or another. "The legislation which we construe is designed to protect the citizens of the state without regard to whether they might through the exercise of diligence and expenditure of funds otherwise protect themselves. The Legislature apparently concluded that the social problem of uncollected judgments against uninsured motorists requires such a paternalistic policy. There is no sound reason for supposing that the Legislature concluded that this comprehensive public policy should stop short of protecting an owner who is injured by a driver of the owner’s vehicle.” 36 Mich App 513, 527, 529, 530. MCL 257.520(b)(2); MSA 9.2220(b)(2), as noted supra, provides that all policies of liability insurance: "Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle”. As observed by the dissent in Weisberg, the only exception permitted by MCL 257.520; MSA 9.2220 is found in subsection (e) thereof: "Such motor vehicle liability policy need not insure any liability under any workmen’s compensation law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of any such motor vehicle nor any liability for damage to property owned by, rented to, in charge of, or transported by the insured.” Nothing in this statute suggests that the requisite insurance is limited only to liability imposed by law to third parties as opposed to liability to the named insured. Indeed, the expression of the one exception and the legislative silence to any others leads us to conclude that the Legislature intended that there be coverage in circumstances such as are present here. Therefore, we hold that the instant exclusion is against public policy because the operation of it prevents coverage required by the financial responsibility law. Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the lower courts and remand to the Macomb Circuit Court for entry of judgment in favor of appellant. No costs, a public question. Kavanagh, C.J., and Williams, Levin, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. MCL 257.1101 et seq.; MSA 9.2801 et seq. MCL 500.3010; MSA 24.13010. MCL 257.520(b); MSA 9.2220(b).

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Williams, J. The underlying import of our decision today is to determine whether working people with few assets are to have access to the appellate process, or are to be precluded from appeal by requiring excessive appeal bonds. These cases, consolidated on appeal from the Landlord-Tenant Division of the Common Pleas Court of Detroit (hereinafter Landlord-Tenant Court), involve the attempts of two working mothers to remain in homes they were purchasing pending appeal of what they claim were invalid foreclosures of their federally insured mortgages. This Court granted leave to consider whether the defendants’ appeal bonds, imposed to accomplish a stay in execution of writs of restitution, were properly set under the applicable court rule. We find that they were not. The Common Pleas Court Rule 46.11 requires a bond set on "reasonable conditions”. While that term is not defined in CPR 46.11, other sections ultimately lead us to DCR 754.10(3), the only available source defining "reasonable conditions”. DCR 754.10(3) states in relevant part: "[T]he reasonable condition for a defendant-appellant shall be that he shall pay into the trial court within five days of the date rent or payments are due under the lease or contract, a sum equal to the reasonable rental value of the premises, as determined by the court, as it becomes due after the time the appeal is ñled and during the pendency of the appeal. ” (Emphasis added.) Because "reasonable conditions” only include amounts that become due after the time of the appeal, and because appellants’ bonds were set so as to include amounts that became due prior to the time of the appeal, the bonds in this case were clearly not set on "reasonable conditions”. We therefore reverse and remand to the trial court to set bond in accordance with this opinion. I. Facts Defendant Carolyn Wingate, a working mother supporting her three children, bought her home in the City of Detroit on February 28, 1974. Absent a special program, Mrs. Wingate could not have made such a purchase because she had neither sufficient income nor assets to qualify for a conventional mortgage. She was able to effectuate the purchase of her own home only through Federal programs established by the Department of Housing and Urban Development (hereinafter HUD). See § 235 of the National Housing Act, 12 USC 1715z et seq. Pursuant to these programs, Mrs. Wingate executed a mortgage to Century Mortgage Corporation, which mortgage was first assigned to Continental Acceptance Corporation (hereinafter Continental), and thereafter assigned to Federal National Mortgage Association (hereinafter FNMA). Under a contract with FNMA, Continental acted as the servicing agent for the Wingate mortgage. Mrs. Wingate was laid off by her employer No vember 26, 1974, and was not called back to work until June, 1976. She was, therefore, unemployed for a period of 18 months. Presumably as a result of this, she fell slightly behind in her mortgage payments but was able to become current as of April, 1975. However, her next payment was not forthcoming until July 2, 1975, and her last payment was made October 22, 1975. Mrs. Wingate and Continental entered into a "forbearance agreement” which required the mortgagor to make double payments for a period of three months. Upon failure of the mortgagor to make further payments, FNMA, on March 15, 1976, hired a law firm to commence foreclosure proceedings. Pursuant to foreclosure, a public sale of the property was held on April 29, 1976, at which FNMA was the highest bidder and acquired a sheriff’s deed to the property. On September 29, 1976, Continental, still acting as servicing agent for FNMA, caused a 30-day notice to quit to be sent to Mrs. Wingate, and on January 5, 1977, summary proceedings were commenced in Landlord-Tenant Court. Mrs. Wingate attempted to present affirmative defenses to the summary proceedings, but these were ultimately disallowed and on April 21, 1977 a summary judgment was granted in favor of plaintiff FNMA. On November 31, 1973, Mary Jo Brown, a working mother supporting two children, executed a mortgage pursuant to the same HUD program involved in the Wingate mortgage and was thereby able to purchase a home in the City of Detroit. The mortgage was executed to Century Mortgage Corporation, subsequently assigned to Continental and finally assigned to FNMA. Mrs. Brown commenced mortgage payments on January 24, 1974 and was current on her mortgage as of October, 1975, despite the fact that she was laid off work for a 38-month period commencing December, 1973. She did not return to work until February, 1977. Mrs. Brown’s last mortgage payment was made in February, 1976 and in June of that year, Continental contacted attorneys for the purpose of foreclosing on the Brown mortgage. On September 2, 1976, the Brown home was sold at public sale. Again, FNMA was the highest bidder and acquired a sheriff’s deed to the property. On February 2, 1977, Continental, as servicing agent for FNMA, caused a 30-day notice to be sent to Mrs. Brown, and on March 15, 1977, summary proceedings were commenced. As in the case of Mrs. Wingate, Mrs. Brown’s affirmative defenses were disallowed and on April 29, 1977, a summary judgment was granted by the Landlord-Tenant Court in favor of plaintiff, FNMA. When Mrs. Wingate and Mrs. Brown both sought appeal to the circuit court based on a disallowance of the same affirmative defenses, their claims were consolidated for purposes of judicial economy. Appellants sought to have their appeal bonds set at the amount of the monthly mortgage payment for each month beginning with May 2, 1977, the date of the claim of appeal. However, on June 27, 1977, the Common Pleas judge denied their motion and ordered the bonds set as follows: a) for Carolyn Wingate, 108% of the monthly mortgage payment of $232, for each month since the claim of appeal, plus six months of back payments, to be paid by the 5th of each month. The first payment due July 5 thus included the nine months of November through July at $250.56 per month, or $2,255.04 to be paid within a week. b) for Mary Brown, 110% of the monthly mortgage payment of $194, for each month since the claim of appeal, plus two months of back payments, to be paid by the 5th of each month. The first payment due July 5 thus included the nine months of March-July at $213.40 per month, or $1,067 to be paid within a week. On July 1, 1977, defendants moved to reduce the appeal bonds in the Wayne Circuit Court on the grounds that they were set in violation of court rules, were clearly excessive, would deprive them of their right to an appeal, and would provide appellee with an unwarranted windfall. On July 15, the Wayne circuit judge denied their motion. On July 25, defendants filed an application for leave to appeal to the Court of Appeals which was denied on August 1, 1977. On August 8, 1977, application for leave to appeal was filed before this Court. Application was granted October 25, 1977, with a subsequent clarification of the issue granted on January 19, 1978. In this final order, pursuant to appellee’s motion for order setting bond pending appeal, the following order as to bond was handed down by this Court: "Appellant Wingate shall pay into the Common Pleas Court a sum equal to the total of the former monthly mortgage payments which would have been due on the property since October 25, 1977, or $232.00, within seven days of the entry of this order, plus $232.00 to be paid by the 25th of each subsequent month, until the disposition of this appeal before this Court. "Appellant Brown shall pay into the Common Pleas Court a sum equal to the total of the former monthly mortgage payments which would have been due on the property since October 25, 1977, or $194.00, within seven days of the entry of this order, plus $194.00 to be paid by the 25th of each subsequent month, until the disposition of this appeal before this Court. "If either appellant fails to make any timely bond payments, the stay of proceedings shall be dissolved as to that particular defendant only. However, if said appellant shall pay the required bond payment late, but before the execution of the writ of restitution, the stay of proceedings shall be reimposed as to that particular appellant.” 402 Mich 854 (1978). According to the records in this Court, neither appellant has failed to comply with the order. II. Issue The issue on which leave to appeal was granted is limited to whether the appeal bonds, as set by the Common Pleas Court and affirmed by the Wayne Circuit Court, are reasonable within the meaning of the applicable court rules, when they were set to include amounts owing prior to the appeal and penalties. III. Background It is difficult to understand the full import of this case without a discussion of the circumstances which comprise both the background of this litigation and the affirmative defense sought to be presented by defendants at the Landlord-Tenant Court. The atmosphere of the Detroit Landlord-Tenant Court where these cases originated does not encourage deliberate, reasoned and compassionate justice, although it deals with one of the basic material essentials of life, a roof over one’s head. Judges, litigants and court personnel are harassed and depressed. In many cases both the landlords and tenants are barely making it financially, and oftentimes they are not making it at all. Cases involve housing conditions that are not the most desirable. Consequently, relations are often strained and not infrequently beyond the breaking point. Many of the tenants do not understand their rights at all, although some understand them too well. Sometimes landlords are in the same posture. It would be difficult to handle these cases with justice in the best of circumstances. But circumstances are far from the best. The case load is incredible. The court facilities are just a little better than tolerable. Matters that can be avoided are avoided. This may be what generated this case but is not in issue here. Operation under such conditions obviously causes need for appeal from time to time. The underlying and real issue in this case, although not directly before us, involves the availability of invalidity of foreclosure as a defense in Landlord-Tenant Court. Appellants’ claim of invalidity is based upon plaintiffs alleged noncompliance with rules promulgated by HUD, which deal with the procedures a mortgagee should follow to avoid foreclosure. The mortgages granted appellee by these women are fully insured by HUD. The "'price” the mortgagee is supposed to pay for this 100% HUD guaranty against loss of money is to seek flexible means of assisting the mortgagors to avoid the loss of their homes. This is pursuant to the purpose of § 235 of the National Housing Act which is to provide a means through which the purchase of a home would be possible for persons of low to moderate income such as these defendants. To further the basic goals of HUD, that agency issued the HUD Handbook 4191.1, Administration of Insured Home Mortgages (Washington, DC: April 18, 1974), subsequent mortgagee letters, and recent Federal regulations. Chapter 8 of the Handbook deals with approved relief provisions. "121. Forbearance Relief. Mortgagees are expected to make a concerted effort to avoid, the foreclosure or assignment of HUD insured mortgages, and to utilize acceptable methods of forbearance relief, wherever feasible. Forbearance is available in several forms where it is reasonable for the mortgagee to believe that the mortgagor can and will resume the mortgage payments. Any of the relief measures discussed in this Chapter may be used and mortgagees are expected to refrain from foreclosure where it is determined that the case may be salvaged through the use of one or more of these procedures. ” (Emphasis added.) Specifically, in the case of the borrower’s unemployment or lay-off which are situations in which the mortgagee could be reasonably certain that payments would resume in the future, Chapter 8 of the HUD Handbook 4191.1 provides for forbearance (¶ 123 of the Handbook), recasting (¶ 125 of the Handbook) or assignment of the mortgage to HUD (TÍ126 of the Handbook). Although appellees assert that a "forbearance agreement” was unsuccessfully attempted in the Wingate case, as discussed in part I, that agreement required Mrs. Wingate to make double payments for a three-month period to bring her mortgage to a current status. Chapter 8 of the Handbook clearly demonstrates that this is not forbearance under HUD standards. Paragraph 123 of that chapter states that forbearance agreements can last up to 18 months without prior HUD approval, and that during this period the regular mortgage payment should be reduced or suspended. That paragraph goes on to assure the mortgagee who enters into a forbearance agreement that "it will receive, as part of its insurance settlement, unpaid mortgage interest, including all amounts accrued prior to the execution of the forbearance agreement * * * ”. The flexibility demonstrated in the Handbook is apparently intended to avoid situations such as exist in the City of Detroit which has an abundance of both boarded-up HUD houses and poor people who cannot find places to live. Certain recent cases have held that failure to comply with these rules could invalidate a foreclosure of a HUD-insured mortgage. Brown v Lynn, 385 F Supp 986 (ND Ill, 1974), reh den 392 F Supp 559 (ND Ill, 1975); Federal National Mortgage Ass’n v Ricks, 83 Misc 2d 814; 372 NYS2d 485 (1975); and Government National Mortgage Ass’n v Screen, 85 Misc 2d 86; 379 NYS2d 327 (1976). See, contra, Roberts v Cameron-Brown Co, 556 F2d 356 (CA 5, 1977); Hernandez v Prudential Mortgage Corp, 553 F2d 241 (CA 1, 1977). While the availability of invalidity of foreclosure as a defense to summary proceedings is not presently at issue before this Court, and we do not conjecture as to what we would hold if it were at issue, we do note that defendants’ present position has some precedential support in this state. This is the precise issue these defendants sought to raise in the form of an affirmative defense to plaintiffs claim for possession. However, the Landlord-Tenant Court held that the invalidity of foreclosure could not be raised as a defense in summary proceedings for possession under MCL 600.5714; MSA 27A.5714,* **** the statute under which this action was brought, and a summary judgment was granted plaintiff. Defendants sought appeal to the circuit court and sought a stay pending appeal to avoid eviction during the appellate process. Under these circumstances, plaintiff-appellee rightfully requested an appeal bond. However, appellants allege as the basis of this appeal that the bonds subsequently set by the Landlord-Tenant Court were prohibitive considering appellants’ financial circumstances, were excessive and unreasonable under the court rule and precluded their appeal of a jurisprudentially significant issue. We agree under the facts of this case. IV. Appeal Bond Money Requirements Unreasonable The right to appeal is not required under common-law principles or general notions of due process. It is generally legislatively granted and can be conditioned on any reasonable bases. See Note, The Right to Appeal, 44 J Urban L 505-506 (1967). One of the conditions normally imposed is that of an appeal bond to protect the appellee during the pendency of the appeal. Note, supra, p 509 citing Hanaw v Bailey, 83 Mich 24; 46 NW 1039 (1890). However, to avoid the harsh effect the bond requirement can have on the poor, the majority of states have enacted statutes which permit waiver of the bond requirement in the case of indigency. Note, supra, p 510; see GCR 1963, 701.8 and GCR 1963, 120. While in the instant case there is no contention that the bond requirement should be fully waived, appellants specifically assert that the appeal bonds, under the facts of this case, were not "reasonably conditioned” as required by the court rule because they contained penalties and were set at amounts so as to include sums which became due prior to the appeal. Appeals from the Landlord-Tenant Court in summary proceedings for possession are governed by MCL 600.5753; MSA 27A.5753: "Any party aggrieved by the determination or judgment of the court under this chapter may appeal to the circuit court of the same county. The appeal shall be made in the same manner as an appeal in other civil actions from the same court, with bond and procedure as provided by court rules. ” (Emphasis added.) "[0]ther civil actions” (and therefore this action) are governed by CPR 46.11(c), which reads, "An appeal shall not stay the issuance of a Writ of Restitution and proceedings pursuant thereto. If a stay of proceedings is desired, a bond shall be filed with the Claim of Appeal. Said bond shall contain a penalty to be fixed by the judge who rendered the decision. If the trial judge has not determined a bond and is not serving at the time of the appeal, another judge of the Landlord-Tenant Division shall determine the reasonable bond. If the appellant is unable to obtain sureties or a cash deposit in lieu thereof, he may have the bond without sureties or cash deposit upon such reasonable conditions as the court may determine. The bond shall be conditioned that the defendant will forthwith pay all rent due or to become due the plaintiff for the premises described in the complaint, or the rental value thereof together with costs, if the plaintiff prevails.” (Emphasis added.) In the instant case, appellants filed affidavits stating that they were unable to obtain sureties or make a cash deposit in lieu thereof. These affidavits were accepted by the Landlord-Tenant Court, and the bonds were set without sureties which, under the above court rule, requires bond upon "reasonable conditions”. As stated supra, the bond set by the court in each case was as follows: appellant Wingate was to pay 108% of the monthly mortgage payment of $232.00 or $250.56 for each month since the end of the redemption period ($2,255.04 through July of 1977), and appellant Brown was to pay 110% of the monthly mortgage payment of $194 or $213.40 for each month since the end of her redemption period ($1,067 through July, 1977). Each was given five days to pay these sums into the court. There is nothing in the Common Pleas Court Rules which defines "reasonable conditions” but CPR 39 directs that: "In all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern.” However, the General Court Rules also fail to specify what "reasonable conditions” shall be. Instead, GCR 1963, 754.9 requires the application of the District Court Rules. "In proceedings under RJA Chapter 57, the procedure in the district, municipal, and common pleas courts shall be governed by District Court Rule 754 together with the applicable statutory practice provisions and applicable local court rules. Appeals to the circuit courts shall be governed by Rule 705.” General Court Rule 705.9(a) did not define "reasonable conditions” but District Court Rule 754.10(3) does: "Bond on Appeal. If the plaintiff appeals, the bond shall be conditioned that, if defendant prevails, plaintiff will pay the costs of the action. If the defendant appeals, the bond shall be conditioned that, if plaintiff prevails, defendant will pay the costs of the action and, if the suit is for possession for nonpayment of a sum of money, that the defendant will pay the rental or con tract amount found due. When it shall appear by affidavit that appellant is unable to obtain sureties or make a cash deposit in lieu thereof, appellant may have the bond without sureties or cash deposit upon such reasonable conditions as may be determined by the court. If a judgment for possession has been entered for plaintiff, the reasonable condition for a defendant-appellant shall be that he shall pay into the trial court within ñve days of the date rent or payments are due under the lease or contract, a sum equal to the reasonable rental value of the premises, as determined by the court, as it becomes due after the time the appeal is hied and during the pendency of the appeal. ” (Emphasis added.) This definition of "reasonable conditions” makes clear that a bond set on "reasonable conditions” as required in the case of defendants who cannot obtain surety, can only include amounts due after the time of appeal. This limitation in the court rule is supported by case law which holds that the scope of an appeal bond must logically relate to its purpose or the right which the bond is meant to protect. This Court set forth the correct law in Kennedy v Nims, 52 Mich 153, 156; 17 NW 735 (1883): ’’The object of the bond is to save all the rights of the appellee,. without prejudice or diminution during the pendency of the appeal, and at the same time to prevent frivolous, vexatious and unnecessary appeals. It is not intended as an additional security for the original indebtedness of the delinquent party, but as an indemnity to the appellee against further trouble, expense and costs while the case is undergoing a review in this Court to ascertain whether or not error has been committed or injustice done the appellant by the decree of the court below. I do not think that under the findings in this case the surety in the appeal bond is liable for any portion of the deficit in the mortgage indebtedness.” (Emphasis added.) While in Kennedy the question being considered was not precisely that which we consider in the instant case, this does not alter the validity of this Court’s clear statement regarding the scope of protection of an appeal bond. We found the object to be the saving of "all the rights of the appellee * * * during the pendency of the appeal * * * as an indemnity * * * against further trouble”. In the instant case the only further trouble which might accrue to the appellee during the pendency of this appeal is the loss of payments which would become due during that period. By setting bonds upon reasonable conditions to prevent this loss, the lower court could have complied with both the spirit and letter of the law. To go further and require payments which became due before an appeal was sought is not within the proper objective of such a bond. Kennedy, supra. See also 4A CJS, Appeal and Error, § 500, p 203. V. Appellee’s Contentions Appellees, however, cite this Court to former GCR 1963, 701.7(3), in force when this action was instituted, and its amended version, GCR 1963, 701.8(a)(2), effective July 25, 1977, as authority for the inclusion of the past due amount within the appeal bond. The former rule provides in relevant part: "Bond on Appeal; Stay of Proceedings. Unless exempted by law, the appellant shall file a bond with his claim of appeal, cross appeal, or order allowing appeal. The bond on appeal "(1) shall be in a penalty not less than $200 and except for appeals from probate court, if the appeal is by a person against whom a claim has been asserted, it shall be not less than one and one-quarter the amount of the judgment or claim allowed. * * * In judgments for possession of land, the bond shall be in the amount and on the conditions provided for by statute. "(3) shall contain a condition that the appellant will prosecute his appeal with all due diligence, to a decision in the circuit court, and that if a judgment is rendered against him in such court, he will pay the amount of such judgment, including all costs, with interest thereon, and if his appeal is discontinued or dismissed that he will pay the amount of the judgment rendered against him, if any, in the lower court including all costs, with interest thereon and in cases involving the possession of land, he will pay damages from the time of the forcible entry, or detainer, or the notice to quit, or demand for possession as the case may be, and do any other act which shall be expressly named in the statute authorizing appeal as a condition of the appeal bond; * * * ."(Emphasis added.) It is. apparent that this court rule treats "amount” and "conditions” as separate. Specifically, in relation to "judgments for possession of land”, the rule states "the bond shall be in the amount and on the conditions provided for by statute”. The "amount” of the bond is fully covered in subrule (1), supra. The "conditions” are fully covered in subrule (3). While in the instant case only the "amount” of the bond is at issue, plaintiff-appellee asserts that one of the "conditions” authorizes setting the bond at a greater ",amountWe do not see the logic of this assertion. In subrule (3), supra, the "conditions” under which the bond is to be given are by their very language meant to be promises or assurances to be made by appellant in conjunction with a bond to stay proceedings. The first requirement is that "appellant will prosecute his appeal with all due diligence * * * ” and the second is that "if a judgment is rendered against him * * * he will pay the amount of such judgment”. Just as these cannot possibly be interpreted to impact the "amount” of the bond under subrule (1), the payment of which must be secured prior to stay, so the third condition that "in cases involving the possession of land, he will pay damages from the time of * * * demand for possession”, cannot be so interpreted. Indeed, the only logical interpretation is that all three are to be "promised” prior to the granting of a stay. Further, although the amended rule was not effective at the time the instant appeal bond was set, we note it retains the same distinctions.* Therefore, we find no . authority in these rules for extending the appeal bond in the instant case beyond the limitations of its purpose, see Kennedy, supra, and beyond an amount required as a "reasonable condition”. See CPR 46.11(c) and DCR 754.10(3). VI. Penalties Finally, appellants challenge the addition of a penalty in a case such as this where sureties cannot be obtained. The penalty provision under CPR 46.11(c) is additional protection against frivolous appeal and this is within the valid purpose of an appeal bond under Kennedy, supra. The court rule states that a bond "shall contain a penalty” (emphasis added). The same rule subsequently states that if "the appellant is unable to obtain sureties * * * he may have the bond * * * upon such reasonable conditions as the court may determine”. The use of the word "shall” in regard to the penalty provision leaves no option other than to find a penalty mandatory. However, the subsequent "reasonable condition” requirement must also be given effect. Therefore, when the appellant is unable to obtain a surety and the bond must thereby be set on "reasonable conditions”, the "penalty” provision must be examined within the context of reasonability. This involves an analysis of how much of a penalty is reasonable in light of appellants’ financial circumstances. Because of the availability of a complete record in the instant case, we note the following evidence of relevance to this determination. The appellants’ financial circumstances are such that bonds set too far beyond a requirement equal to the monthly mortgage payment as it becomes due during the pendency of the appeal would literally preclude exercise of the right to appeal in the instant case. From appellant Wingate’s affidavit that she was unable to obtain surety or make cash deposit, it was evident that she had three children, a take-home pay of $169.67 per week, child support totaling $37 per week, personal savings and belongings totaling approximately $125, medical debts of approximately $2,000 and a family who was unable to assist her financially. Appellant Brown’s affidavit evidenced that she had two children, a take-home pay of $220 per week, had no debts but also had no additiQnal sources of income such as child support, had personal belongings and savings totaling less than $100 and a family who was unable to assist her financially. This analysis does not disclose to us any reason for the amount of the penalty and the court, in assessing it, gave none. Therefore, on remand, when the trial court determines the proper penalty to be assessed, the reasons for doing so should be given so if there is further appeal, a proper decision can be made in light of the whole record. VII. Conclusion We do not question the need to protect the rights of an appellee in the case of a stay pending appeal. Appellee’s rights and interests are considerable and are recognized in both the court rules and case law of this jurisdiction. At the same time, there is no authority for going further and hindering the right to stay pending appeal by forcing appellant to give more than is required to protect appellee’s rights. Reverse and remand for entry of an appeal bond consistent with the findings in this opinion. Kavanagh, C.J., and Levin, Coleman, and Blair Moody, Jr., JJ., concurred with Williams, J. See part III, infra, for a discussion of defendants’ affirmative defenses. In concluding his opinion in the instant case, Justice Fitzgerald points out, "At the time the trial court fixed the appeal bonds, defendant Wingate had not made a mortgage payment in more than 21 months and defendant Brown had not made a mortgage payment in more than 17 months.” Defendants, in their motion to stay all proceedings pending decision on application for leave to appeal to this Court, do not dispute this fact, but state, "[Tjhese time periods are equivalent to the length of time it has taken these proceedings to reach the present stage, and do not reflect any willful or negligent refusal by the defendants to make payments. Indeed, during the bulk of these time periods, plaintiff would not accept any payment less than the complete outstanding mortgage value, in violation of the HUD regulations which form the basis for defendants’ affirmative defenses.” Chapter 9 of the Handbook, which deals with acquisition of the property by the mortgagee, states: "141. Acquisition — General. When the mortgagor either cannot or will not resume and complete the mortgage payments, the mortgagee shall take steps to acquire the property. In cases where the default is caused by a hardship beyond the mortgagor’s control, this decision shall be made only after all of the relief measures described in Chapter 8 have been considered, and the mortgagee has determined that none of them is likely to be effective in making it possible for the mortgagor to retain the property. Once the decision has been made, however, such action shall not be delayed.” (Emphasis added.) See also Ch 7, ¶ 110 of the Handbook: "Review Prior to Beginning Foreclosure Action. Foreclosure of a mortgage shall be undertaken only after the mortgagee or servicer has assured itself that the case has been handled in full accordance with the servicing practices outlined herein. When foreclosure is unavoidable, it shall be started promptly and pursued diligently in order to minimize the eventual loss.”, and Ch 9, ¶[ 144, "Foreclosure. Foreclosure is a last resort and shall not be initiated until all other servicing actions have been exhausted. HUD does not prescribe the method of foreclosure to be used by the mortgagee. The mortgagee is responsible for conveying good merchantable title to the property and for furnishing satisfactory title evidence when the property is conveyed to the Secretary, and the method of foreclosure is a concomitant to meeting this responsibility. Foreclosure shall be completed in accordance with local statutes and prevailing practices in the area in which the property is located.” Paragraph 126 of the Handbook was superseded by a HUD directive of October 14, 1976, subsequent to the public sales of these defendants’ homes. The newer directive elaborates upon the assignment procedure. See HM Mortgagee Letter 76-9, Acceptance of Assignment of Home Mortgages in Default (No N-76-653, May 17, 1976). The proper issue in Landlord-Tenant Court is right to possession and the few Michigan cases on point support the position that validity of foreclosure is to be considered. In Gage v Sanborn, 106 Mich 269, 279; 64 NW 32 (1895), this Court held: "The questions to be tried before the commissioner under this statute [for summary proceedings] in a foreclosure case are: (1) The fact of the mortgage sale and its validity; (2) the holding over after expiration of the period of redemption. If these questions cannot be tried by the commissioner the statute is farcical, as jurisdiction would always be lost as soon as a plausible claim of invalidity of the sale should be raised. Hence a mortgagor is permitted to question the validity of the sale in this proceeding * * * .” (Emphasis added.) The language of the statute in Gage is very similar to RJA § 5714(l)(e) quoted in part in footnote 6, infra. See also Reid v Rylander, 270 Mich 263, 267; 258 NW 630 (1935) ("We again hold that validity of the [foreclosure] sale may be tested in a summary proceeding based thereon, insofar as invalidity thereof appears in the procedure * * * ”). See, e.g., Guardian Depositors Corp v Keller, 286 Mich 403, 409; 282 NW 194 (1938). This is not to say that noncompliance with HUD rules would necessarily be a sufficient basis for a finding of invalid foreclosure in this state. This issue has not yet received appellate review in Michigan. The statute reads in part relevant to these proceedings: "(1) The person entitled to any premises may recover possession thereof by summary proceedings in the following cases: "(e) When a person continues in possession of any premises sold by virtue of any mortgage or execution, after the time limited by law for redemption of the premises.” Although there is no specific mention of affirmative defense within this statute, appellants assert part (e) should properly be read as follows: "(e) When a person continues in possession of any premises [validly] sold by virtue of any mortgage or execution * * * ”. Appeal is useless to these defendants without a stay because all incentive to appeal would be gone if they were forced to vacate their homes. During oral arguments in the instant case, defendants’ attorney was questioned about why bonds were not available to these women, both of whom were employed at the time. The attorney stated that in his experience, "[sjurety companies will not insure bonds for people coming out of summary proceedings on appeal”. He explained that generally the defendants represented by the Landlord-Tenant Clinic, of which he is director, have no assets and that these defendants do not even own automobiles. The issue in Kennedy was whether the sureties on an appeal bond were liable for anything beyond the costs of the appeal. Because appellants were apparently not asked to comply with the "conditions” aspect of the court rule, the propriety of requiring, as a prerequisite to appeal bond, a promise that appellants will pay a prior sum of money which was not requested in plaintiffs suit (this suit under MCL 600.5714[l][e]; MSA 27A.5714[l][e], is solely for possession) and for which there is, therefore, no judgment against appellants, is not before this Court. We again note the limitations set forth in Kennedy that the appeal bond is "an indemnity * * * against further trouble’’. (Emphasis added.) The amended court rule, GCR 1963, 701.8, effective July 25, 1977, states: "Stay of Proceedings "(a) Civil Cases. "(2) Unless a bond is waived under GCR 1963, 120 or the appellant is exempted by law from filing a bond, the appellant shall file a bond with the claim of appeal, claim of cross appeal, or order granting leave to appeal. The appeal bond must: "(A) be at least $200, and "(i) except for an appeal from probate court, if the appeal is by a person against whom a money judgment has been entered, it must be not less than one and one-quarter times the amount of the judgment; or "(ii) if the appeal is from a judgment for possession of land, it must be in the amount and on the conditions provided by rule; "(B) recite the judgment so as to exhibit the names of the parties and the judge, the character in which the parties prosecuted or defended before the trial court, and the amount recovered; "(C) contain a condition that "(i) the appellant will diligently prosecute his appeal to a decision, and if a judgment is rendered against him, he will pay the amount of the judgment, including costs and interest; "(ii) if his appeal is discontinued or dismissed, he will pay the amount of the judgment, if any, rendered against him in the trial court, including costs and interest; "(iü) in a case involving the possession of land, he will pay damages from the time of forcible entry, the detainer, the notice to quit, or the demand for possession; and "(iv) he will perform any other act expressly named in the statute authorizing appeal; and "(D) be executed by the appellant with one or more sufficient sureties as required by GCR 1963, 763.” (Emphasis added.) As is apparent, (A), supra, is the portion dealing with the "amount” of the bond. Part (C), supra, deals with conditions or promises and can only logically be interpreted in the same manner as its precedessor.

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Fitzgerald, J. These cases, bearing the identical question for decision, were consolidated for opinion. The Rntkowsld case, having been previously dismissed for procedural reasons, was reinstated and will not be dealt with in depth save for the ultimate consideration of the question. Kenneth Arnett was an employee of J. S. Fred-man Construction Company and was injured during the course of his employment at a General Motors plant. Liberty Mutual Insurance Company was the workmen’s compensation insurance carrier for the Fredman Construction Company and paid medical expenses and workmen’s compensation benefits to and on behalf of the injured employee Kenneth Arnett. Thereafter, Kenneth Arnett and Mae Ellen Arnett began third-party litigation in Wayne County against General Motors Corporation and Liberty Mutual Insurance Company intervened. Before judgment, plaintiffs Arnett compromised their claim against the defendant. Intervening plaintiff then demanded full reimbursement out of the recovery obtained by plaintiffs. Intervening plaintiff then made a motion for summary judgment against plaintiffs Arnett and defendant General Motors Corporation, asserting that Liberty Mutual Insurance Company had the right to be reimbursed in full out of the recovery obtained by reason of the third-party settlement. The trial court denied the motion. Thereupon, the intervening plaintiff refused to proceed and the case was dismissed. This appeal followed. The Rutkowski case, on substantially similar facts, was begun in Oakland County and resulted in a decision directly opposite from Arnett. The Oakland trial court held that Liberty Mutual had a first right to monies paid by defendant. Appeal followed from this decision. The single issue in these eases is whether the intervening plaintiff may enforce its claim to recover workmen’s compensation benefits paid to the injured employee against the settlement made by the plaintiff and defendant. The question presented calls for determination of legislative intent as expressed in MCLA § 413.15 (Stat Ann 1968 Eev § 17.189), the pertinent part being the first five paragraphs: “Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence such action within 1 year after the occurrence of the personal injury, then the employer or its compensation insurance carrier may, within the period of time for the commencement of actions prescribed by statute, enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of suit by any party under this section, such party shall notify, by registered mail at their last known address, the workmen’s compensation commission, the injured employee, or in the event of his death, his known dependents, or personal representative or his known next of kin, his employer and the workmen’s compensation insurance carrier. Any party in interest shall have a right to join in said suit. “Prior to the entry of judgment, either the employer or his insurance carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor. “Such settlement and release by the employee shall not be a bar to action by the employer or its compensation insurance carrier to proceed against said third party for any interest or claim it might have. “In the event the injured employee or his dependents or personal representative shall settle their claim for injury or death, or commence proceeding thereof against the third party before the payment of workmen’s compensation, such recovery or commencement of proceedings shall not act as an election of remedies and any moneys so recovered shall be applied as herein provided. “In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workmen’s compensation insurance carrier for any amounts paid or payable under the workmen’s compensation act to date of recovery, and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits.” On two recent occasions, the Supreme Court interpreted the foregoing statutory provision. Gamble v. American Asbestos Products Company (1968), 381 Mich 105, 112; and Transamerican Freight Lines, Inc. v. Quimby (1968), 381 Mich 149, 160. In Gamble, the court held: “The statute says the employee may sue, settle with, and release the third party before judgment. The statute also says that any moneys so recovered shall be applied as therein provided, and thereafter provides that any recovery against the third party shall first reimburse the employer and its insurance carrier. We can see no lawful alternative to compliance with the express language of the statute by affirming, as we do, the decisions below.” In Transamerican, the court held: “The statutory provision allows no alternative other than approving the trial court’s order granting summary judgment in favor of plaintiff against defendant Clayton L. Quimby.” The language employed by the Supreme Court is clear. The party that paid the benefit is entitled to reimbursement from any recovery against the third party. Whether the party who paid the workmen’s compensation benefits intervened is immaterial. This Court regards Gamble, supra, and Transamerican, supra, as controlling the case at bar. Therefore, the intervening plaintiff, Liberty Mutual Insurance Company, may enforce its claim to recover workmen’s compensation benefits paid to an injured employee against the settlement made by the plaintiff and the defendant. The result of the Wayne County circuit court is reversed with costs to appellant and the Oakland County circuit court is affirmed with costs to appellee. All concurred.

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McGregor, J. This being a motion to dismiss, we take the facts pleaded in the complaint as true and set them forth basically as stated by plaintiffs. Plaintiff Karen Rose was involved in a head-on collision while in a car driven by Boris Gorski, in January, 1964. The accident occurred while both vehicles were travelling on Highway US-24. Plaintiffs filed a complaint against defendant, alleging negligence on his part in his position and capacity as state highway commissioner and by him personally. Defendant moved for summary judgment for failure of plaintiff to state a claim upon which relief can be granted. The motion was denied by the circuit judge, and from this defendant appeals. This action is predicated on two counts. The substance of the first alleges that “* * * John C. Mackie, a State Highway Commissioner, had the administrative duty and responsibility under the general highway law, Michigan Statutes Annotated, to 'oversee the art of building, improving and repairing’ so that the said Telegraph Road [US-24] would be reasonably safe for traffic by the public and more particularly the said Boris Gorski and his passenger, Karen Rose.” They continue “* # * John C. Mackie negligently failed to fulfill his administrative duty and responsibility in the premises by al lowing said road to remain in an unsafe condition after due notice to his agents and servants that such unsafe condition existed.” In another part of the complaint they state: “That the proximate cause of the accident was the unsafe condition of the said highway due to the fact that just immediately prior to the point of the accident, said highway suddenly narrowed to a two-lane highway from a three-lane highway without sufficient notice to the users of the said highway and particularly the said [complainant] * * * ” The defendant responds that since the state is immune from liability for such negligence, the defendant shares that immunity. In the alternative, the defendant asserts that, even if defendant is not immune, the complaint does not state a cause of action in negligence. The substance of the second count is that the highway was constructed in a negligent manner and “* * * the said John C. Mackie knowingly, wantonly, and wilfully failed and neglected to make or cause any change to be made in the design and construction of the said highway, notwithstanding that he, his servants, and agents, had on divers occasions been apprised of the menace to life and limb resulting from said hazardous design and construction, and of the need to change and remedy the same.” Defendant, by way of defense, says that the second count fails to state a claim on which relief can he granted, because defendant’s duty (if any) to redesign and reconstruct highway US-24 at the point of the accident was owed to the public, not to the plaintiffs. In the first count, the plaintiffs readily admit to the fact that they do not seek to hold the state liable. Although the state removed much of the immunity it formerly had in this area, by legislative enactment [MCLA § 691.1401 et seq. (Stat Ann 1969 Rev § 3.996[101] et seq.)], the change was not effective until July 1, 1965. The plaintiffs’ first count does not merit discussion; since the state is immune from liability for negligence, the defendant as highway commissioner is also immune. Longstreet v. County of Mecosta (1924), 228 Mich 542, 551; McDowell v. State Highway Commissioner (1961), 365 Mich 268, 271. The plaintiffs aver in their second count that the defendant is liable for wilful and wanton misconduct in the performance of his duties as state highway commissioner. The plaintiffs contend that John C. Mackie was a public official, charged with the performance of ministerial duties, which duties were owed to Karen Rose, individually, and that, because of defendant’s notice of the serious condition existing on the highway, and his wilful failure and neglect to make or cause any change to be made in the design of said highway, he should be liable to the plaintiffs for the damages they have sustained. We note at the outset that in their complaint, the plaintiffs allege that defendant had “* # * the administrative duty and responsibility under the General Highway Law, Michigan Statutes Annotated, to ‘oversee the art of building, improving and repairing’ * * * .” They do not state from what source they ascribe these duties to the commissioner, or to whom they are owed. The only statutory language approximating the quoted language in the complaint is CL 1948, § 225.1 (Stat Ann 1958 Rev § 9.201): “There is hereby created and established a state highway department, which shall be charged with the giving of instruction in the art of building, improving and repairing public wagon roads * * * .” The plaintiffs cite the cases of Raynsford, v. Phelps (1880), 43 Mich 342, and People, for use of Lapeer County Bank v. O’Connell (1921), 214 Mich 410, in support of their argument that a direct duty was owed to plaintiffs. In Raynsford. supra, the plaintiff was the mortgage holder of a piece of property taken in satisfaction of a debt. It was the defendant’s duty under the express provisions of the statute to make collection from the proper person. There was property on the land belonging to the party who should have rightfully paid the taxes, but the tax collector, instead of performing his duty, falsely made a return of no-goods (with which to satisfy the debt), whereby the tax became established as a lien upon the land and the land was sold for its satisfaction. The mortgage holder’s interest was closed out and he was forced to redeem from a tax sale. The court therein said: “[A] public officer having ministerial duties to perform, in which a private individual has a special and direct interest, is liable to such individual for any injury sustained by him in consequence of his failure to perform such duties.” (Emphasis supplied.) Raynsford, supra, p 344. The official in Raynsford had invaded the rights of one person and one person’s property. The present situation is much broader in scope, in that the state highway commissioner does not act personally against any single individual in the construction and maintenance of highways. It could in no sense be said that the defendant singled out one individual in respect to whom he violated his official duty. In People, for use of Lapeer County Bank v. O’Connell, supra, the state, on behalf of a savings bank, brought a suit against the sureties of a county official, who had misappropriated the funds of a single entity. Again, we are faced -with a more direct relationship than exists in the instant case. Notwithstanding the fact that defendants in the above-discussed cases were held to be liable to a private individual, the defendant herein has a much broader duty, and one which is to be considered a “public duty.” People of Illinois, for use of Trust Co. of Chicago v. Maryland Casualty Company (CA 7, 1942), 132 F2d 850, held that the duty imposed upon officers of the Illinois department of public health and department of public welfare to provide for health and sanitary facilities at state institutions was a “public duty” and not a “private duty.” (See, also, Massengill v. Yuma County (1969), 104 Ariz 518 (456 P2d 376), for discussion of public and private duty.) There was no private duty owed to the individuals working on the premises of a state institution, and hence no liability of such officers for death or injury to such laborers resulting from contaminated waters: “When the state defines by statute the powers and describes the duties of the officers of these departments, it is not creating duties the officers owe to the individuals who may constitute the general public of Illinois; it is merely outlining the state’s assumed public duty.” 132 F2d 852. The plaintiffs’ redress is not against defendant, personally. Reversed and remanded to the trial court, for entry of an order granting defendant’s motions for dismissal. All concurred.

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Fitzgeratjd, P. J. This case is before the Court for purpose of reviewing summary judgment in defendants’ favor. Max Nelson and Rosemary Nelson, plaintiffs, were hog raisers in Isabella County prior to June 25, 1962. The corporate defendants induced the plaintiffs to abandon their traditional hog-raising methods and to adopt a new system, the components of which were developed by defendants. It was alleged that the system was represented to increase hog production while utilizing less space, less labor, less feed and increasing pounds of pork for feed and decreasing hog loss and sanitation problems. Plaintiffs adopted the new system and thereafter the following events transpired: the pigs began to eat each other; the pigs chewed and rooted up the wooden slatted floor and fell into the sewage disposal lagoon and drowned; the pigs tore out the automatic feeding devices and other equipment; the pigs tore down interior gates to a second building; sows crashed the gates off the first building when the piglets were removed; pigs contracted pneumonia from the ventilating system; odor was not cleared from the buildings causing more illness; the sanitation lagoon gave off gases which sickened the residents of a nearby village; villagers threatened plaintiffs and their business with extermination and plaintiffs lost their reputation as hog raisers. Plaintiffs informed defendants that things had gone awry and were allegedly told to continue the operation of the hog farm and they would repair or redesign the system so that it would work. Apparently no corrections or modifications were made on the system and plaintiffs were forced to abandon their hog-raising operations. Aii action was commenced on June 24,1968, whereupon defendants moved for summary judgment, alleging that the action was barred by the statute of limitations. The trial court granted the motion which was based primarily on Citizens Casualty Company of New York, New York v. Aeroquip Corporation (1968), 10 Mich App 244, which held that if an action is primarily one to recover damages for an injury to property, the three-year statute is controlling, even though the duty allegedly breached had its origins in contract. In its opinion, the trial court explained: “In the court’s opinion the origin of liability is not the important thing in deciding what portion of the statute is controlling. The court is of the opinion that the character of the law is the important thing to consider and the action is essentially one to recover damages for injury to property, the three year statute is applicable, even though the legal duty which is alleged to have been breached had origin in contract.” The sole issue concerns an error charged to the trial court in its application of the three-year statute of limitations governing actions to recover damages for injuries to person or property. Plaintiffs argue the existence of a contract whereby defendants obtained a monetary consideration in return for an integrated system for the production of swine which was to provide certain commercial advantages. They contend that since the action was essentially in contract then the six-year statute of limitations for breach of contract is applicable and controlling. Defendants contend that the present cause of action is not governed by contract, but rather by the statute covering damage to persons or property. A complete review of the record in the instant case disclosed considerable damage to plaintiffs’ property. It appears that Fries v. Holland Hitch Company (1968), 12 Mich App 178, is directly applicable and controlling. In its opinion, the Fries court stated at pp 184, 185: “We are compelled by the decisions of the Supreme Court to look to the real nature of the wrong-on which the suit is based. Even though the wrong arose by virtue of some implied agreement between the parties, unless that wrong constitutes a breach of some particular provision of that agreement, actions for injury to person or property must be brought within 3 years. Coates v. Milner Hotels, Inc., (1945) 311 Mich 233; Baatz v. Smith (1960), 361 Mich 68, both of which are discussed by Judge Kavanagh in State Mutual Cyclone Insurance Company, supra, and further elaboration here is unnecessary.” While plaintiffs claim damages for breach of express warranties of contract, the record discloses only a sales slip indicating price and items purchased. No doubt the wrong of which the parties complain arose through some implied agreement of the parties, but the fact remains that this Court, as was the trial court, is compelled to look beyond this and into the very nature of the wrong itself. Absent any breach of a specific contractual provision, this case is governed by the statutory provisions applicable to injuries to person or property. The instant case stands in contrast to Schenburn v. Lehner Associates, Inc. (1970), 22 Mich App 534, in that the interpretation of Fries there delineated is not applicable here. In Schenburn, no injury to person or property was claimed. A specific contract was pleaded, in opposition to the bare sales slip before us. The case at bar and Schenburn are distinguishable on their facts. Granting of the summary judgment was proper under the pleadings and existing statutory and case law. Affirmed. Costs to appellees. All concurred. MCLA § 600.5805(7) (Stat Ann 1962 Rev § 27A.5805(7)). MOT,A § 600.5807(8) (Stat Aim 1962 Rev § 27A.5807(8) ). State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1968), 381 Mich 318.

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Williams, J. Introduction The issue presented to us in this case is whether an Act 312 arbitration panel had the authority to compel inclusion of a layoff clause in a collective-bargaining agreement between Center Line police officers and the City of Center Line. The layoff clause at issue provides: "The word 'layoff means a reduction in the working force due to a decrease of work or general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments.” The constitutionality of Act 312 was upheld in Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980), and, thus, we do not review this issue here. The initial decision to lay off is not a mandatory subject of bargaining and, therefore, beyond the scope of the panel’s authority. To hold otherwise would raise serious questions regarding political accountability for major policy decisions. The effect of that decision is, on the other hand, a mandatory subject. Therefore, bargaining to that extent may be compelled. I. Facts The City of Center Line and Local 1277, Metropolitan Council No. 23, AFSCME, AFL-CIO (hereinafter the union), the duly recognized bargaining agent for police officers involved in the instant case, began collective-bargaining negotiations in order to formulate a new contract in January, 1976. The negotiations proved unsuccessful, and on May 26, 1976, the union invoked Act 312 compulsory arbitration. MCL 423.231 et seq.; MSA 17.455(31) et seq. On June 14, 1976, the city notified three of the eight patrolmen employed that on July 8 they were to be laid off. The union then obtained an order from the Macomb Circuit Court, Judge Frank Jeanette, which in essence referred the layoff issue to Act 312 arbitration and restrained the layoffs pending a decision by the arbitration panel. The arbitration panel issued an interim opinion on August 12, 1976, which determined that the layoffs as well as the withholding of shift differential allowances and clothing allowances pending a final decision by the Act 312 panel were improper and prohibited. On September 7, 1976, Judge Jean ette issued a permanent injunction granting the relief awarded by the arbitration panel, including an injunction against the layoffs. The city appealed the judgment to the Court of Appeals, which affirmed on September 8, 1977. Metropolitan Council No 23, Local 1277, AFSCME, AFL-CIO v Center Line, 78 Mich App 281; 259 NW2d 460 (1977), lv den 402 Mich 814 (1977). This decision is not the subject of our review. The Act 312 arbitration continued as to the major issues, and on February 25, 1977, the opinion of the panel was issued. The opinion included the provision with regard to layoffs at issue in the instant case which states: "The word 'layoff means a reduction in the working force due to a decrease of work or general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments.” The union filed a motion to confirm the Act 312 award, and on January 27, 1978, the circuit court ordered summary judgment for the union and enforced the award. The Court of Appeals, on July 11, 1979, in a per curiam decision, affirmed the circuit court, thus upholding the arbitration award. Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v Center Line, 91 Mich App 337; 283 NW2d 741 (1979). We held the instant case in abeyance pending a decision in Metropolitan Council No 23, AFSCME v Oakland County Prosecutor, 409 Mich 299; 294 NW2d 578 (1980), as it seemed that it might be decisive of the issues presented in the instant case. On December 19, 1980, after the decision in Oakland County Prosecutor was issued, we granted leave to appeal and requested that the parties "include among the issues to be briefed: whether the arbitration provision respecting layoffs was within the authority of the arbitration panel”. 410 Mich 868 (1980). II. Constitutionality of Act 312 Appellant attempts to raise the recurring issue of the constitutionality of Act 312, MCL 423.231 et seq.; MSA 17.455(31) et seq. The constitutionality of the compulsory arbitration statute was thoroughly examined in Detroit v Detroit Police Officers Ass’n, 408 Mich 410; 294 NW2d 68 (1980). This Court held that Act 312 was constitutional. We further held that the act as amended provides standards as reasonably precise as the subject matter requires or permits and that there is adequate political accountability to withstand a constitutional attack. 408 Mich 480, 505. Therefore, there is no need for us to review this issue any further. Act 312 is clearly constitutional, and as such it is applicable in this case. III. Authority of the Act 312 Arbitration Panel A The real substantive issue to be addressed in this case is whether the Act 312 compulsory arbitration panel had the authority to order the inclusion of a layoff provision in the collective-bargaining agreement between the city and the union. The layoff provision at issue in the instant case provides: "The word 'layoff means a reduction in the working force due to a decrease of work or general lack of funds. If for lack of funds, police officers may be laid off only in conjunction with layoffs and cutbacks in other departments(Emphasis added.) The arbitration panel rejected both parties’ proposals with regard to layoffs. The union’s offer was to continue the layoff language as provided in the previous collective-bargaining agreement. The prior contract stated: "(a) The word 'layoff means a reduction in the working force due to a decrease of work. "(b) In all cases of layoff the principle of straight seniority by department shall be observed and length of service shall govern. "(c) The employer will, whenever possible, give at least seven (7) days notice prior to layoff to the employees affected together with a list of the names of said employees to the union.” The city, on the other hand, proposed an offer of settlement that would eliminate the definition of layoff included in the prior contract and have nothing in the contract restricting the layoff decision. The ultimate language adopted was developed by the arbitration panel itself. The rationale for including such a clause with its compromise language was supposedly to protect the police officers from retaliatory layoffs due to the union’s lack of cooperation in fiscal matters. The Court of Appeals noted the reason given for the inclusion of this clause and stated that: "[w]e do not perceive the language as restricting the basic legislative choices of the city in providing municipal services, and we conclude that the award was within the power of the arbitration panel”. Local 1277, Metropolitan Council No 23, AFSCME, AFL-CIO v Center Line, 91 Mich App 337, 342; 283 NW2d 741 (1979). In fact, the Court of Appeals found that, given the previous contract between these parties, the clause actually expanded management rights. The layoff clause in the prior agreement was interpreted to totally prohibit layoffs solely for economic reasons, while the new clause merely stated that layoffs had to be made in conjunction with layoffs in other departments. Id, In deciding whether or not the Act 312 arbitration panel had the authority to order the inclusion of the layoff clause, it is necessary first to analyze Act 312 itself. As stated in MCL 423.231; MSA 17.455(31), the act intended "to afford an alternate, expeditious, effective and binding procedure for the resolution of [interest] disputes”. Compulsory arbitration in police and fire disputes was seen as a necessary tradeoff for the prohibition against striking. The legislative intent of Act 312 has been discussed on numerous occasions, see Detroit v Detroit Police Officers Ass’n, supra, and Metropolitan Council No 23, AFSCME v Oakland County Prosecutor, 409 Mich 299; 294 NW2d 578 (1980), and was succinctly summarized by Justice Coleman in Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn, 394 Mich 229, 278-279; 231 NW2d 226 (1975). She stated: "PERA procedurally requires the parties to meet at the bargaining table and confer in good faith with an open mind and a sincere desire to reach an agreement. It does not mandate agreement. If the parties fail to agree on one or more mandatory subjects, an 'impasse’ situation is reached and the employer may take unilateral action on an issue consistent with its final offer to the employees’ representative. The duty to bargain is then suspended until there is a change in the surrounding conditions or circumstances. "In the private sector 'impasse’ often results in a strike. The employees refuse to accept the unilateral conditions imposed by the employer and withhold their services as a bargaining weapon. In the public sector strikes are prohibited but nevertheless occur. If the public employees do strike, the public employer may resort to the courts in order to return the labor situation to the status quo. By the time that court relief is obtained, however, the public may well have been left for a long period without the services and protection of the striking employees. "When policemen engage in a strike, the community becomes immediately endangered by the withdrawal of their services. Likewise, our case law has often focused on the fact that fire fighters have a distinct and crucial employment relationship with a public employer. "The Legislature, with knowledge of the vital character of police and fire services and with reference to the specific recommendations of the Governor’s Advisory Committee on Public Employee Relations (February, 1967) moved to foreclose strikes to police officers and fire fighters by enacting 1969 PA 312.” (Footnotes omitted.) The manifest intent of Act 312 is clear. The exact scope of the arbitration panel’s authority, on the other hand, is not so easily discerned from the words or intent of the act. While Act 312 does not specifically delineate the scope of the arbitration panel’s authority, it can be inferred from an analysis which considers the public employee relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq., and Act 312 together. As stated in § 14, Act 312 was clearly intended to supplement PERA. MCL 423.244; MSA 17.455(44). Council No 23 v Oakland County Prosecutor, supra, 409 Mich 320; Alpena v Alpena Fire Fighters Ass’n, 56 Mich App 568, 575; 224 NW2d 672 (1974), overruled in part, Detroit v DPOA, 408 Mich 483, fn 65. Under § 15 of PERA, to bargain collectively "is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment”. (Emphasis added.) MCL 423.215; MSA 17.455(15). This language is identical to that of § 8(d) of the National Labor Relations Act (NLRA), 29 USC 158(d), and, thus, federal precedents are helpful in exploring the issues at hand. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 53; 214 NW2d 803 (1974). Those issues that fall into the category of "wages, hours and other terms and conditions of employment” are deemed to be mandatory subjects of bargaining. 391 Mich 54-57. In contrast, permissive subjects of bargaining are those subjects that fall outside the scope of those designated as mandatory subjects. The parties are not required to bargain over them, but they may do so voluntarily. Pontiac Police Officers Ass’n v Pontiac, 397 Mich 674, 679-681; 246 NW2d 831 (1976). A third category of bargaining subjects is illegal subjects. Illegal subjects will not be enforced even if the parties agree to bargain over such issues. In general, Michigan has adopted the federal courts’ approach as to what constitutes a mandatory subject of bargaining and thus has used the phrase "other terms and conditions of employment”. See Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 277; 273 NW2d 21 (1978), and Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 27; 232 NW2d 278 (1975). The distinction between a mandatory and a permissive subject of bargaining is a very significant one. In the private sector, parties are required to bargain in good faith regarding mandatory subjects of bargaining. Also, a party may insist to impasse on such a subject and resort to economic weapons in order to achieve its demand. When a permissive subject is involved, however, neither party is obligated to discuss the subject, nor can a party insist to impasse on that subject. NLRB v Wooster Division of Borg-Warner Corp, 356 US 342, 349; 78 S Ct 718; 2 L Ed 2d 823 (1958). In the public sector, regardless of the subject nature, the parties are prohibited from striking. MCL 423.202; MSA 17.455(2). Nonetheless, the distinction between mandatory and permissive subjects plays a vital role in the bargaining dynamics of the public sector. It is only with respect to mandatory subjects that there is a duty to bargain under § 15 of PERA. MCL 423.215; MSA 17.455(15). In spite of the differences between the public and private sector with regard to economic weapons, it has been held in numerous Michigan decisions that federal precedent in distinguishing between mandatory and permissive subjects is relevant and persuasive. Central Michigan University, supra; Pontiac Police Officers Ass’n, supra; Rockwell v Crestwood School Dist Board of Education, 393 Mich 616, 636; 227 NW2d 736 (1975); Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 54; 214 NW2d 803 (1974). Therefore, it is useful to look to federal law as well as Michigan law for guidance to determine whether the layoff provision at issue in the instant case is a mandatory subject of bargaining. The distinction drawn between mandatory and permissive subjects of bargaining is significant in determining the scope of the Act 312 arbitration panel’s authority. Given the fact that Act 312 complements PERA and that under § 15 of PERA the duty to bargain only extends to mandatory subjects, we conclude that the arbitration panel can only compel agreement as to mandatory subjects. It would be inconsistent to conclude that the arbitration panel can issue an award on a permissive subject when the parties do not even have a duty to bargain over such a subject. To hold otherwise would grant the Act 312 arbitration panel a free hand to compel agreement on any matters, even those beyond “wages, hours and other terms and conditions of employment”. It is clear that the Legislature, while interested in foreclosing strikes in police and fire departments and providing an "alternate, expeditious, effective and binding procedure for the resolution of disputes” did not intend for the arbitration panel to have unbridled authority. B The layoff clause at issue in this case is not easily labeled a mandatory or permissive subject of bargaining. The case law in this area varies substantially, given different fact situations and different treatment by various courts. Nonetheless, an analysis of the case law and its application to this layoff clause leads us to conclude that the layoff provision in this particular case is not a mandatory subject of bargaining. Therefore, it was beyond the scope of authority of the Act 312 arbitration panel to order the parties to include such a clause in their agreement. Several United States Supreme Court cases have discussed mandatory subjects of bargaining in the private sector. In Fibreboard Paper Products Corp v NLRB, 379 US 203; 85 S Ct 398; 13 L Ed 2d 233 (1964), the Supreme Court held that, based on the particular facts before it, the "contracting out” of work previously performed by union members was a mandatory subject of bargaining. The decision was definitely limited to the facts of the particular case before the Court. It was emphasized by the concurrence that "[t]he Court most assuredly does not decide that every managerial decision which necessarily terminates an individual’s employment is subject to the duty to bargain. Nor does the Court decide that subcontracting decisions are as a general matter subject to that duty”. 379 US 218 (Stewart, J., concurring). The Court went out of its way to limit its holding and emphasized that its decision would not significantly abridge the employer’s freedom to manage the business as the mere replacement of employees by independent contractors was involved. There would not be any requirement of material alteration in the company’s basic operation nor any additional capital investment. In the private sector, then, Fibreboard is a case that discussed the contracting issue and job security, but it did little to illuminate a clear path for future decisions as it was strictly limited to the facts at hand. A very recent United States Supreme Court case dealt with a similar issue in the private sector. In First National Maintenance Corp v NLRB, 452 US 666, 686; 101 S Ct 2573; 69 L Ed 2d 318 (1981), the issue presented was whether an employer must bargain over its decision to close a part of its maintenance service business under §§ 8(d) and 8(a)(5) of the NLRA. The Court held that the decision itself is not a mandatory subject of bargaining included within the phrase "terms and conditions of employment”. The Court concluded that "the harm likely to be done to an employer’s need to operate freely in deciding whether to shut down part of its business purely for economic .reasons outweighs the incremental benefit that might be gained through the union’s participation in making the decision”. Once again the Court attempted to limit its holding by noting the specific facts of the case that led to this result. There was no intention of the employer to replace the discharged employees with other employees or continue the operation elsewhere. The dispute arose because the management fee paid by Greenpark Care Center was reduced and caused the employer to lose money on that service contract. Also, there was no claim of anti-union animus, and the bargaining representative was not selected or certified until after the economic difficulties had ensued. Thus, this case was seen as factually distinguishable from Fibreboard. The Court concluded by stating that "[t]he decision to halt work at this specific location represented a significant change in petitioner’s operations, a change not unlike opening a new line of business or going out of business entirely”. 452 US 688; 101 S Ct 2585; 69 L Ed 2d 337. While the subject at issue in the instant case deals with layoffs, the discussion in these cases regarding subcontracting is relevant. It can be argued that the instant case is more closely aligned with First National Maintenance Corp than Fibreboard as the police officers were not going to be replaced and the decision to lay off employees is similar to the closing down of part of a business. As the city stated in its brief, it must be allowed to make decisions regarding the layoffs as it may be best for the people of Center Line at some point to abolish the independent police force altogether. Such a decision is very similar to the closing of a business, which has been held in some cases not to be a mandatory subject in the private sector. Of course, it must be kept in mind that these cases were limited to the facts before the Court. The National Labor Relations Board and lower federal courts have also struggled with the issue of whether layoffs or subcontracting are mandatory subjects of bargaining. The National Labor Relations Board held in United States Gypsum Co, 94 NLRB 112, 114-115 (1951), that the union’s proposal that layoffs should be made according to seniority was a condition of employment and, thus, bargainable. This opinion, however, was amended, and due to representation problems the unlawful refusal to bargain charge was dismissed. 97 NLRB 889 (1951), modified 206 F2d 410 (CA 5, 1953), cert den 347 US 912 (1954). Application of the Fibreboard analysis has not been an easy task for the NLRB or the courts. In NLRB v Adams Dairy, Inc, 350 F2d 108 (CA 8, 1965), cert den 382 US 1011 (1966), the court reversed the board’s decision and held that the decision to discharge driver-salespersons and use independent contractors for product distribution was not a mandatory subject of bargaining. The court’s rationale was that the change was one affecting the entire operation and capital structure and it would significantly abridge the employer’s freedom to manage the business if bargaining were mandated. 350 F2d 111. Thus, Fibreboard would not require bargaining on such a decision. In Ozark Trailers, Inc, 161 NLRB 561 (1966), the board held that a company was obligated to bargain over the decision to close a plant. The board emphasized the importance that such a decision had for the worker. A few years later, however, the board retreated somewhat from the rationale in Ozark and held that there was no obligation to bargain over an employer’s decision to terminate the manufacturing portion of its business. Summit Tooling Co, 195 NLRB 479 (1972). The board reaffirmed the employer’s duty to bargain over the effects of a closing. Ozark, however, was revitalized in Royal Typewriter Co, 209 NLRB 1006 (1974), where the board held that the employer’s decision to close a plant as well as the effects of the decision were mandatory subjects of bargaining. Several judicial decisions have held layoffs in the private sector to be mandatory subjects of bargaining. NLRB v Exchange Parts Co, 339 F2d 829, 830-831 (CA 5, 1965); NLRB v Frontier Homes Corp, 371 F2d 974, 979-980 (CA 8, 1967). From a brief sampling of the case law in this area, it is apparent that whether or not a particular issue is a mandatory subject of bargaining in the private sector depends heavily on the particular facts, as well as the tribunal to which the case is presented. There is not a set guideline or standard to be used in every case. The issue of what constitutes a bargainable subject in the public sector has also been discussed by many commentators and courts. "Perhaps the single greatest, and almost universally recognized, limitation on the scope of bargaining or negotiation by state public employees is the concept of managerial prerogative as it has developed in the public sector. In essence, the concept creates a dichotomy between 'bargainable’ issues, that is, those issues which affect conditions of employment, and issues of 'policy’ which are exclusively reserved to government discretion and cannot be made mandatory subjects of bargaining.” Anno: Bargainable or Negotiable Issues in State Public Employment Relations, 84 ALR3d 242, 255-256. As stated earlier, the layoff provision provided that layoffs of police officers for lack of funds could only be made in conjunction with layoffs and cutbacks in other departments. We interpret this clause as one that is within the scope of management prerogative. The clause unduly restricts the city in its ability to make decisions regarding the size and scope of municipal services. As the city argued in both oral argument and its brief, the city no longer would be able to base its decision on factors such as need, available revenues, or public interest. The decision regarding layoffs could only be based on the level of services in other departments if the layoff clause was to be upheld. This severely restricts the city in its ability to function effectively and poses serious questions with regard to political accountability for such decisions. The union, on the other hand, would like us to believe that the clause is a mild prohibition and does little to restrict the city’s decision-making process. We do not agree. The clause is a mild restriction, but it speaks to the very essence of the decision. The decision to lay off police officers can only be made in conjunction with other departments according to this clause. While we are aware of the union’s interest in the job security of its members and the perceived need to protect police officers from retaliatory layoffs in this case, the clause awarded was beyond the permissible scope of the Act 312 arbitration panel’s authority. To so restrict the policy decisions of the city is beyond the legislative words and intent. That is not to say that the union has no interest in these issues. The retaliatory layoff issue can most assuredly be dealt with in a variety of ways. The use of compulsory arbitration, however, to insure no retaliatory layoffs is not justified. Also, while the initial decision to lay off is not a mandatory subject of bargaining, and therefore cannot be compelled in an arbitration award, it is clear that there is a duty to bargain over the impact of that decision. Thus, the union has the ability to protect its members after the initial decision has been made. It is one thing to require the city to bargain over the impact of its decision to lay off police officers and quite another to permit them to lay off police officers only if layoffs are made in other departments as well. C While the initial decision to lay off is not a mandatory subject of bargaining, the impact of that decision is an issue for bargaining. Several cases have discussed this fact. In Fire Fighters Union v Vallejo, 12 Cal 3d 608, 621-622; 116 Cal Rptr 507; 526 P2d 971 (1974), the Court held that the decision to lay off, itself, is not a mandatory subject of bargaining, but to the extent that the decision to lay off affects the workload and safety of the remaining workers it is a bargainable and arbitrable issue. The Court also held that with regard to the manning proposal it too was bargainable and subject to arbitration to the extent that it related to workload and safety. The Wisconsin .law in this area is also significant. In Beloit Education Ass’n v Employment Relations Comm, 73 Wis 2d 43, 58-60; 242 NW2d 231 (1976), the Court held that the layoff proposal requiring seniority to be a basis for layoffs is a mandatory subject of bargaining so long as it does not invade the school board’s right to determine curriculum. The test developed by the Wisconsin Supreme Court to distinguish a permissive subject from a mandatory subject of bargaining has been labeled the "primary relation test”. A subject is a mandatory subject of bargaining if the topic "primarily” or "fundamentally” relates to wages, hours and conditions of employment. Presumably, matters of curriculum determination are not subjects of mandatory bargaining. In reviewing a decision by the WERC in another case, the Court held that "economically motivated layoffs of public employees resulting from budgetary restraints is a matter primarily related to the exercise of municipal powers and responsibilities and the integrity of the political processes of municipal government”. City of Brookfield v Wisconsin Employment Relations Comm, 87 Wis 2d 819, 833; 275 NW2d 723 (1979). In BrooMeld, the Court relied on a statute which delineated municipal powers, including layoff decisions, to conclude that a budgetary layoff decision was not a mandatory subject of bargaining. "To decide the issue to be a mandatory subject of bargaining would destroy the equal balance of power that insures the collective bargaining rights of the union and protects the rights of the general public to determine the quality and level of municipal services they consider vital.” The Court noted that the effects of the layoffs were mandatory subjects of bargaining. "A reduction in the total work force caused by the economically motivated layoffs will affect the number of employees assigned to a particular shift and thus alter their individual fire fighting responsibilities. Therefore, there is a primary relation between the impact of the lay off decision and the working conditions of the remaining unit employees.” 87 Wis 2d 833. The Michigan Court of Appeals was faced with the issue of whether a manpower clause was within the scope of the arbitration panel’s authority in Alpena v Alpena Fire Fighters Ass’n, 56 Mich App 568; 224 NW2d 672 (1974). The Court concluded that the manpower award was within the subject matter and jurisdiction of the arbitration panel as it concerned safety, a "condition of employment”. In a similar case, the Rhode Island Supreme Court found that the minimum manpower requirement affected both the workload and safety of the fire fighters and therefore was a mandatory subject of bargaining and arbitrable. Narragansett v International Ass’n of Fire Fighters, AFL-CIO, Local 1589, 119 RI 506; 380 A2d 521 (1977). The clause in this case, however, unlike the ones involved in the cases discussed above, does not involve safety. If the concern were truly over safety, then layoffs in other departments would have no bearing on the issue. The rationale for the wording of the clause was clearly to. prevent retaliatory layoffs. Also, once the decision has been made by the city, the union can bargain about the impact of that decision on workload and safety. In fact, in oral argument, counsel for the city stated that they were not contending that the impact of the decision was not subject to arbitration. Counsel stated that the effect on the safety of the remaining forces, seniority rights, "bump” rights and even the motive behind the layoff decisions are all subjects of collective bargaining. Thus, we do not foreclose bargaining or the issuance of an arbitration award covering such issues. We only hold that the initial decision is a management prerogative and that the arbitration panel cannot mandate a clause on the initial layoff decision. The Act 312 arbitration panel involved in this case analyzed the relevant case law on the subject and concluded that the basis for layoff decisions was a mandatory subject of bargaining. In the next paragraph of its opinion, however, the panel withdrew somewhat from this bold conclusion. The panel stated that good-faith bargaining was required on the issue but that Act 312 arbitration panels "should be very cautious in this area”. The panel expressed its concern about substituting its judgment with regard to layoffs for that of the elected, politically accountable officials. The conclusion was that "without compelling reasons an arbitration panel should not substitute its judgment for that of elected officials in the area of lay offs”. The arbitration panel, in developing the compro mise language, felt that it achieved an equitable balance between the city’s need for flexibility, the employee’s security and the public’s interest. It also assured against the police officers being singled out and subjected to layoffs for retaliatory reasons. The arbitration panel’s analysis seems to be more supportive of a finding that the layoff decision is one within the management prerogative and a policy decision rather than a mandatory subject of bargaining. The statements made regarding caution in substituting the panel’s judgment for that of the city illustrates that this subject is one within the province of the city. We disagree with the arbitration panel’s conclusion that the layoff decision is a mandatory subject of bargaining. The city, thus, cannot be compelled to agree to a clause on the subject — regardless of its compromise language. By applying the policy-impact approach, it is clear that the initial decision to lay off public employees must be left to the public body. There can still be mandatory bargaining over the impact of such a decision, but the initial decision must be left to the politically accountable representatives. Conclusion The Act 312 arbitration panel in this case exceeded its authority with respect to the layoff clause awarded. The clause deprived the city of its ability to make a policy decision, that is, whether to lay off police officers. Such policy decisions are not mandatory subjects of bargaining. The impact of such a layoff decision, however, is subject to bargaining. The panel in this case went beyond compelling an award merely dealing with the effect of such decision, and, thus, the award cannot be enforced. Accordingly, we reverse the decision of the Court of Appeals and hold that the layoff clause shall not be enforced as awarded. No costs, a public question being involved. Fitzgerald, C.J., and Kavanagh, Levin, Coleman, and Ryan, JJ., concurred with Williams, J. The late Justice Blair Moody, Jr., took no part in the decision of this case. The question of last offer arbitration was not raised with respect to this layoff provision. The theory involved is that last offer arbitration applies only to economic issues and that the arbitrator has the power to say what is and is not economic. The issue was designated non-economic. As the question was not raised, we express no opinion. It should be noted that Justice Coleman dissented in Detroit v DPOA, supra, 578, and stated: "The researcher will note that in Dearborn Fire Fighters v Dearborn, 394 Mich 229; 231 NW2d 226 (1975), I wrote to the opposite of the opinion I have now signed. [Footnote omitted.] I must confess to a starry-eyed vision of how the 1969 legislative form of compulsory arbitration should operate — but it has not. More importantly, I am now convinced that it cannot operate constitutionally under the present statute.” For a general discussion of the three categories of bargaining in the private sector, see Bartosic & Hartley, Labor Relations Law in the Private Sector (ALI-ABA, 1977), pp 157-Í65; Gorman, Basic Text on Labor Law Unionization & Collective Bargaining (West Publishing Co, 1976), pp 496-531. With respect to bargaining in the public sector specifically, see Anno: Bargainable or Negotiable Issues in State Public Employment Relations, 84 ALR3d 242. For articles on the scope of bargaining in the public sector, see Sackman, Redeñning the Scope of Bargaining in Public Employment, 19 Boston Col L Rev 155 (1977); Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich L Rev 885 (1973). It should be noted that even if the parties agree to discuss a permissive subject of bargaining it does not thereafter become a mandatory subject. Thus, the fact that the layoff decision may have been a subject of bargaining in past contract negotiations does not make such a subject mandatory for future collective-bargaining agreements. See City of Taunton v Taunton Branch of the Massachusetts Police Ass’n, — Mass App —; 406 NE2d 1298, 1302 (1980). Two New York decisions, for example, have held that job security, while not a mandatory subject of bargaining, is a permissive subject that can be bargained over if the parties voluntarily agree. Burke v Bowen, 40 NY2d 264; 386 NYS2d 654; 353 NE2d 567 (1976); Board of Education of Yonkers City School Dist v Yonkers Federation of Teachers, 40 NY2d 268; 386 NYS2d 657; 353 NE2d 569 (1976). For cases holding that mandatory subjects of bargaining are within the Act 312 arbitration panel’s scope of authority, see Roseville v Local 1614, International Ass’n of Firefighters, AFL-CIO, 53 Mich App 547, 558-559; 220 NW2d 147 (1974), lv den 393 Mich 759 (1974); Local 1518, AFSCME, AFL-CIO, Michigan Council 55 v St Clair County Board of Comm’rs, 43 Mich App 342, 344-345; 204 NW2d 369 (1972). In Fibreboard, the employer informed the union that the decision had been made to "contract out” the maintenance work performed by union members because substantial savings could be realized. Thus, bargaining would be pointless. The employees in the bargaining unit were discharged, and independent contractors were employed to do the work. The union then proceeded to file charges of unfair labor practices against the employer. In Van Buren Public School Dist, supra, 61 Mich App 27, the Court of Appeals was faced with the issue of whether the contracting of school-bus driving previously performed by bargaining unit members was a mandatory subject of bargaining under § 15 of PERA. The Court discussed Fibreboard at length and concluded that the contracting at issue was a mandatory subject of bargaining as it concerned a "term and condition of employment” and to require bargaining of the subject furthered the statute’s primary purpose. The Court of Appeals also stated that § 15 of PERA should be given an even more expansive construction than its NLRB counterpoint considering the strike prohibition for public employees. The Court further limited its holding by noting in a footnote that it expressed no view as to other types of management decisions. Thus, the Court was concerned solely with the facts and circumstances before it and declined to make any decision regarding such issues as plant relocations, sales, other kinds of subcontracting or automation. 452 US 686, fn 22; 101 S Ct 2584; 69 L Ed 2d 335. In First National Maintenance Corp, supra, 452 US 677-678; 101 S Ct 2580; 69 L Ed 2d 330, the Court stated in a footnote that "[tjhere is no doubt that petitioner was under a duty to bargain about the results or effects of its decision to stop the work at Greenpark, or that it violated that duty”. For cases discussing this issue see discussion, infra. The arbitration panel also discussed the mandatory subject issue in its interim opinion and concluded that layoffs were mandatory subjects of bargaining.

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Per Curiam. Defendant was found guilty of the crime of gross indecency with a female person by a jury in the recorder’s court for the city of Detroit. CDS § 750.338b (Stat Ann 1954 Eev § 28.570(2)). On appeal, the only issue is whether defendant’s constitutional right to represent himself was denied. US Const, Am 6; Const 1963, art 1, § 13. The trial court assigned attorney Jesse PEolliday to represent defendant. Mr. Holliday had been defendant’s assigned counsel in another case involving a three-day trial. The defense in both that case and the present one was alibi and involved the same alibi witnesses. Further, defendant pleaded guilty at the other trial to breaking and entering a dwelling place with intent to commit a felony therein. That dwelling place was the same building as the one in which the crime occurred in this case. On the day set for trial and prior to the selection of the jury, defendant indicated to the trial court that he was dissatisfied with his assigned counsel. There followed an extensive colloquy between the court, the defendant, and the assigned counsel regarding this matter. At the conclusion of this discussion, defendant and his assigned counsel went into the detention cell to confer and the case was adjourned until the next day. No dissatisfaction with or objection to assigned counsel was thereafter made by defendant and Mr. Holliday continued to represent defendant throughout the trial of this case. After a careful examination of the record we have concluded that the defendant did not unequivocally request that he be permitted to conduct his own defense and that the trial court did not err in allowing previously assigned counsel to continue to represent the defendant during his trial. Compare United States v. Denno (CA 2, 1965), 348 F2d 12, 15, 16, cert denied, 384 US 1007 (86 S Ct 1950, 16 L Ed 2d 1020); People v. Henley (1969), 382 Mich 143. Affirmed.

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McGregor, J. Defendant was tried without a jury on April 30, 1968, and was convicted of uttering and publishing, MCLA § 750.249 (Stat Ann 1962 Rev § 28.446), and sentenced to serve from 2 to 14 years in prison. On appeal, defendant alleges that an incriminating statement was elicited from him by the arresting officer, in contravention of his Miranda rights. Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694). The statement was admitted into evidence without objection either before or at trial. The facts indicate that an officer was called from the street into the bank. The bank teller, in explaining the circumstances to the officer on the scene, in dicated that the check appeared to be a bad check. The officer asked for and received some identification from the defendant; when the officer inquired whose check it was, the defendant responded that a friend had given it to him and had asked him to cash it for him. Defendant testified at trial that he found the check on a Dexter bus, which testimony conflicted with his original statement to the officer. Essentially, we have a general on-the-scene investigatory questioning by a police officer. There was, at the time of defendant’s admission of possession of the check, no indication of an arrest being made by the officer, nor was the scene physically dominated by this lone officer in the lobby of the bank, nor was the defendant substantially deprived of his freedom of action in any significant way. Miranda proscribes custodial interrogation, or interrogation under a loss of freedom. In People v. Patton (1968), 15 Mich App 198, the Court ruled that Miranda warnings were not required where the arresting officer asked one of the defendants (subsequently arrested for unlawfully driving away an automobile) what he was doing with the truck, and defendant answered that a man at the bar had asked him to pick it up for him. “The trial record discloses testimony of the arresting officer concerning the statement made by Richard Patton as follows: “ ‘Q. What did Mr. Patton say at this time? “ ‘A. When I asked him what he was doing with the truck? “ ‘Q. Yes, sir. “ ‘A. He said that he had met a man at a bar and that the man told him to come down and pick up his truck for him. “ ‘Q. Did he mention which bar ? ‘“A. I don’t believe he did say the bar he was at.’ ” People v. Patton, supra, 200. Such was held to be general, on-the-scene questioning where the defendant was not significantly deprived of his freedom of action, and therefore, Miranda did not apply. We find the questioning herein the same as found in Patton, and therefore, rule that Miranda does not apply. This Court finds that defendant did not object to the use of these statements either prior to or during the trial; the defendant claims he was prejudiced by his failure to object. Defendant directs our attention to the recent holding of the Michigan Court of Appeals in People v. Wilson (1969), 20 Mich App 410, wherein it was held that automatic reversal was required, even though defendant did not object, where the prosecution used defendant’s statements which were elicited in contravention of his Miranda rights. Since the statement herein was not the product of a custodial interrogation or an interrogation under a loss of freedom and, therefore, Miranda does not apply, Wilson, supra, is not applicable. It was not error to admit the statement, and defendant could not be prejudiced by his failure to object. Conviction affirmed. All concurred.

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J. H. Gillis, J. This is a welfare rights appeal. The question presented is one which has in recent years received frequent judicial consideration. At issue is whether the Michigan Department of Social Services acted lawfully in denying welfare assistance to plaintiff Lue Ella Evans and her six children. I Facts On April 4, 1967, plaintiff Evans’ grant under the aid to dependent children (ADC) provisions of the Michigan Social Welfare Act was cancelled by the Department of Social Services on the ground that she had fraudulently obtained a larger assistance grant than that to which she was entitled. Her case was referred to the prosecutor for institution of criminal proceedings. On July 12, 1967, plaintiff reapplied for ADC assistance but her application was denied on the basis of the pending criminal proceedings. Subsequently, on August 24, 1967, plaintiff was convicted in recorder’s court for the city of Detroit of welfare fraud and sentenced to two years probation. The court also ordered plaintiff to make restitution to the Department of Social Services in the amount of $499. On January 17, 1968, a hearing was held before Wayne county welfare authorities on plaintiff’s appeal from the denial of her reapplication for ADC assistance. At the hearing, a memorandum of the Department of Social Services was read into the record in support of the denial of assistance. The memorandum states in part: “In reference to eligibility following violation that results in prosecution, the State Office has recently advised as follows: “* * [/]/ the court prescribes restitution, we have ruled that the client is not eligible for assistance until either such restitution has been made or the court revolees that part of the sentence.’ ” Memorandum No 60-4, Department of Social Services (March 23, 1960). (Emphasis supplied.) Since the plaintiff had not complied with the recorder’s court order of restitution, the hearing referee, apparently relying on Memorandum 60-4, concluded that plaintiff was ineligible to receive ADC assistance. This decision was affirmed by state welfare authorities, and on February 8, 1968, defendant Bernard Houston, Director of the Michigan Department of Social Services, informed plaintiff that “Subsequent court action resulted in a penalty of probation and restitution which is still in effect. For this reason you cannot be found eligible for a grant at this time.” An appeal from the department’s denial of assistance was claimed and timely filed in the Wayne county circuit court. The circuit court granted plaintiff Evans’ motion for summary judgment, GCR 1963, 117.2(3), and reversed the decision of defendant. The trial court held that the department’s cancellation and denial of assistance was improper and ordered retroactive payment of the ADC grant. For reasons which will appear, we affirm. II The ADC Program The ADC program is one of the major categorical public assistance programs established by the Federal government under the Social Security Act of 1935. The program is financed largely by federal funds, on a matching basis, and is administered by the states. In order to participate in the program and take advantage of the substantial federal funds available for distribution to needy children, states are required to submit an ADC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 42 USC §§ 601, 602, 603 and 604. The plan must conform with several requirements of the Social Security Act and with the rules and regulations promulgated thereunder by HEW. 42 USC § 602. For an extended discussion of the history, scope, and the basic purposes of the ADC program, see Reuben K. King v. Sylvester Smith (1968), 392 US 309 (88 S Ct 2128; 20 L Ed 2d 1118). Under the Social Security Act, states are free to set standards of need, as well as to determine the level of benefits by the amount of funds it devotes to the ADO program. See Reuben K. King v. Sylvester Smith, supra, 392 US at 318, 319 (88 S Ct at 2133; 20 L Ed 2d at 1126). However, within the framework of state-determined standards of need, a state must: “[P]rovide * * * that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall he furnished with reasonable promptness to all eligible individuals.” 42 USC § 602(a) (10). (Emphasis supplied.) And see Williams v. P. Dandridge (D Md, 1968), 297 F Supp 450, 454. The category of “eligible individuals” singled out for welfare assistance by ADC is the “dependent child,” who is defined in § 406 of the Act, 42 USC § 606. The aid furnished is to “needy dependent children and the parents or relatives with whom they are living.” 42 USC § 601. Although the needs of the parent or relative with whom the child is living may be considered by the state in determining the amount of aid, 42 USC § 606(b), the primary purpose of ADC assistance is the protection of needy children. “Protection of such children is the paramount goal of AFDC.” Reuben K. King v. Sylvester Smith, supra, 392 US at 325 (88 S Ct at 2137; 20 L Ed 2d at 1130). The state of Michigan, like all other states, participates in the ADC program. By PA 1939, No 280, (MCLA §400.1, et seq., Stat Ann 1968 Rev § 16.401, et seq.), it likewise became the policy of this state to provide protection, welfare, and assistance to dependent children. The Department of Social Services was established to administer programs of both general and categorical assistance, including ADC. Tlie department was charged with developing the requisite ADC plan in order to obtain the Federal moneys available under the Social Security Act. Under the Social Welfare Act, the legislature empowered the department to adopt any rules and regulations necessary to enable the state of Michigan to participate in the distribution of Federal funds. The department was empowered “to do all things reasonable and proper to conform with all Federal requirements pertaining to methods and standards of administration.” Section 56 of the Social Welfare Act establishes various conditions which restrict the category of dependent children entitled to ADC in the state of Michigan. For example, such children must be “deprived of parental support or care by the death, continued absence from the home, or physical or mental incapacity of a parent.” Those entitled to ADC assistance must be under the age of 18, or under 21 and a student regularly attending classes. In general, ADC eligibility in Michigan parallels Federal eligibility standards. And, as in the case under the ADC provisions of the Social Security Act, a fair reading of Section 56 indicates that protection of dependent children is the primary purpose of such assistance in Michigan. Finally, the legislative mandate is clear: If a child is “dependent” within the meaning of § 56 of the Social Welfare Act, “Aid * * * shall be provided * * * .” (Emphasis supplied.) In administering the Social Welfare Act, the department is to be guided by the concept of entitlement. That concept means: “[Objective eligibility safeguards against revocation or loss of benefits, and it means that the individual’s rights, whatever they may be, should be known to him and enforced through law.” Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale LJ 1245, 1256 (1965). In short, the ADC claimant is entitled to have his interest in such assistance considered in accordance with statutory criteria. Ill The Department’s Contentions On appeal, defendant contends that the action of the department in refusing ADC assistance to plain tiff was in accordance with statutory eligibility criteria under the Social Welfare Act. Although the defendant concedes that plaintiff Evans’ children are “dependent” within the meaning of § 56 of the Act, it insists that they are, nevertheless, ineligible for aid by virtue of § 43 of the Social Welfare Act. That section reads: “All assistance granted under this act shall be reconsidered from time to time, or as frequently as may be required by the state department. After further investigation by the county department of social welfare, the amount and manner of giving assistance may be changed, or the assistance may be withdrawn if the state department finds the recipient’s circumstances have changed sufficiently to warrant such action. It shall be within the power of the state department at any time to cancel and revolee assistance for cause, and it may for cause suspend payments for assistance as it may deem proper, subject to appeal and hearing by the recipient as provided for in section 9. The provisions of this section shall be mandatory only with respect to old age assistance, aid to dependent children, aid to the blind, aid to the permanently and totally disabled or any other function financed in whole or in part by federal funds.” MCLA § 400.43 (Stat Ann 1968 Rev § 16.443). (Emphasis supplied.) It is the department’s contention that plaintiff Evans’ failure to comply with the recorder’s court order of restitution constitutes cause for revocation of assistance within the meaning of § 43. We cannot agree. The defendant’s argument, if accepted, necessarily requires the conclusion that the state legislature has committed to the department’s discretion all decisions concerning eligibility for welfare assistance under the Social Welfare Act. Nowhere in the act is there any indication of just what conduct consti tutes “cause” for cancellation of a welfare recipient’s grant. The term is simply not defined. In the absence of any standards by which to judge a termination for cause, conduct which the department alone regards as reprehensible could serve as justification for denying welfare assistance. We do not believe that § 43 has the effect which defendant claims. The history of welfare administration in the United States negates any implication that, by enacting § 43, the Michigan legislature empowered the department to determine what conduct justifies denial of assistance. See Reuben K. King v. Sylvester Smith, supra, 392 US at 320-327 (88 S Ct at 2134-2139; 20 L Ed 2d at 1127-1131). Indeed, had the legislature intended so drastic a result, there is good reason to suppose that it would have made its intent more explicit. That same legislature had no difficulty in making it abundantly clear just what conduct on the part of a recipient justifies refusing aid; and, even then, aid can be refused by the department only under limited circumstances. We think it clear that § 43 empowers the department to withdraw assistance only where, for example, a recipient of ADC no longer meets the objective eligibility criteria established in § 56 of the act. So construed, the power to revoke for cause is limited to cancellation based on ineligibility under the standards set forth in the Social Welfare Act. We reach this conclusion for several reasons. First, various provisions of the Social Welfare Act reflect an intent on the part of the Michigan legislature to guarantee compliance by the state with the provisions of the Social Security Act. The State Department of Social Services was empowered to take all necessary steps to conform with Federal requirements pertaining to state categorical welfare administration. One such requirement regarding state administration of ADC program is that “the state agency will make such reports * * * containing such information, as the Secretary (HEW) may from time to time require * * * 42 USC § 602. In response to this Federal requirement, the legislature specifically required the state department to “make such reports * * * containing such information, as may be required from time to time under the provisions of the social security act * * * .” An additional Federal requirement regarding state ADC plans, one established by ITEW, is that, in order to qualify as an acceptable state plan, the plan must require the agency administering the program to periodically review “a recipient’s circumstances [which] may affect his eligibility or the amount of assistance.” Clearly, the purpose of this requirement is to avoid payment of Federal ADC funds to individuals who, because of changing family status or need, no longer qualify for assistance. See Comment, “Withdrawal of Public Welfare: The Right to a Prior Hearing,” 76 Yale LJ 1234 (1967). It was in response to this Federal requirement that we think the legislature enacted § 43 of the Social Welfare Act, requiring the department to periodically review an ADC recipient’s circumstances in order to reconsider eligibility status. The “circumstances” to be investigated by the department are those eligibility criteria established in § 56 of the Act. Section 43, in our view, authorizes the department to revoke assistance only where a recipient is no longer “dependent” within the meaning of § 56, or is no longer in financial need. We refuse to infer any broader delegation of power. To do so would permit the department under § 43 of the act to revoke assistance for a good reason, a bad reason, or no reason at all. In the absence of objective standards by which to judge a decision to revoke “for cause,” an appeal from such a decision would be meaningless. We do not think that the legislature, when it conferred upon the department the power to revoke for cause, “subject to appeal and hearing by the recipient ” intended that there be a total absence of such standards. On the contrary, standards are provided; they are those contained in § 56. A revocation for cause under § 43 of the act is limited to cancellation based on ineligibility under those standards. This is not to say that the department is powerless under all circumstances to revoke assistance to those otherwise qualified under the act. The legislature has clearly empowered the department to take such action in two limited circumstances. For example, § 61 of the act provides: “Whenever any person receiving aid, relief or assistance is convicted of an offense under this act, or of any other crime or offense and punished by imprisonment for one month or longer, the county board may thereupon direct that all payments for aid, relief or assistance under this act shall cease and shall not be made during the period of such imprisonment.” We think such sections of the act are exclusive. They enumerate the only situations deemed significant enough by the legislature to warrant denial of aid. In the present case, the department concedes that plaintiff’s children are eligible for ADC relief under § 56 of the act. Moreover, those children have done nothing which, under the act, warrants cancellation and refusal of aid to them. Nothing in the act suggests that plaintiff’s failure to make restitution disqualifies her children from aid, and there is no provision of the act from which such legislative intent can be implied. The department’s action in refusing aid adds a disqualification of plaintiff’s children not provided by the act. This the department has no power to do. Consequently, we hold such action invalid on the ground that it imposes an additional condition of eligibility not required by the Social Welfare Act. Cf. Reuben K. King v. Sylvester Smith, supra; Doe v. Shapiro (D Conn, 1969), 302 F Supp 761. The department’s action in refusing ADC assistance was in square conflict with the mandatory provisions of § 56 of the act, requiring that aid be provided to all eligible individuals. Defendant’s other contentions have been considered. We find them without merit. Affirmed. No costs, a public question being involved. All concurred. Compare, Reuben K. King v. Sylvester Smith (1968), 392 US 309 (88 S Ct 2128; 20 L Ed 2d 1118; Shapiro v. Thompson (1969), 394 US 618 (89 S Ct 1322; 22 L Ed 2d 600); Doe v. Shapiro (D Conn, 1969), 302 F Supp 761; Dews v. Henry (D Ariz, 1969), 297 F Supp 587; City of East Orange v. W. McCorkle (1968), 99 NJ Super 36 (238 A2d 489). See generally, Charles A. Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” (1965) 74 Yale LJ 1245. MCLA § 400.56 (Stat Ann 1968 Rev § 16.456). Section 60 of the act, MOLA § 400.60 (Stat Ann 1968 Rev § 16.460), makes it a crime for one to obtain by fraudulent devices a larger amount of assistance than that to which he is entitled, Under the Social Welfare Act, an ADC claimant denied assistance is entitled to a fair hearing contesting the denial. See MCDA § 400,9 (Stat Ann 1908 Rev .§ 16.409). The appeal was taken pursuant to the contested ease provisions of the Administrative Procedure Act, MCLA § 24.108 [Stat Ann 1969 Rev § 3.560(21.8)]. under Title IV of the Social Security Aet, the Federal terminology for what we have ealled the ADC program is “aid to families with dependent children,” (AFDC). See 42 USC § 606(b). Hereafter referred to as “The Social Welfare Act.” MCLA § 400.1 (Stat Ann 1968 Rev § 16.401). MCLA § 400.10 (Stat Ann 1968 Rev §16.410). MCLA § 400.10 (Stat Ann 1968 Rev §16.410). MCLA § 400.56 (Stat Ann 1968 Rev § 16.456). MCLA § 400.56(a) [Stat Ann 1968 Rev § 16.456(a)]. MCLA § 400.56(c) [Stat Ann 1968 Rev § 16.456(e)]. Compare MCLA § 400.56 (Stat Ann 1968 Rev § Í6.456) with 42 ITSC § 606. One noteworthy exception is the requirement that either child or his parent must have resided in Michigan for 1 year preceding application for ADC assistance. See MCLA § 400.56(d) [Stat Ann 1968 Rev § 16.456(d)], In Shapiro v. Thompson, supra, note 1, like residency requirements were held unconstitutional by the United States Supreme Court. MCLA §400.56 (Stat Ann 1968 Rev § 16.456). Seetion 56(e) of the Aet is to the same effect: “The amount of assistance which shall be granted for any dependent child * * * .” MCLA § 400.56(e) (Stat Ann 1968 Bev § 16.456[e]). (Emphasis supplied.) Compare the above sections with 42 USC § 602(a) (10), quoted in text supra. On appeal, defendant contends that the ADC grant is a gratuity, but surely, even if this is so in the sense that it is unearned and the program is an act of compassion by an enlightened government, those charged with administering the program cannot as a matter of whim revoke a benefit. There must be adequate grounds for revocation; they must be valid grounds. Manifestly, the “gratuity” (right/privilege) analogies prove too mueh. See James J. Graham. “Public Assistance: The Eight to Receive; The Obligation to Repay,” 43 NYU LR 451, 467-475; Reich, supra, note 1. We mighl add that elsewhere the department has characterized the welfare claimant's interest in publie assistance as a right. “Application shall be considered a right of any individual who considers himself eligible for assistance for himself or for another, and shall not be denied or limited.” 1954 Administrative Code, Eules So Eegulations of the Michigan. Social Welfare Commission, E 400.1 (1). Eor our ability to judicially notice the published rules and regulations of the department, see MCLA § 24.80 (Stat Ann 1969 Eev § 3.560 [16]). “In a society where a significant portion of the population is dependent on social welfare, decisions about eligibility for benefits are among the most important that a government can make.” Reich, supra, note 1, at 1253. Ror example, §40 of the Act, MCLA § 400.40 (Stat Ann 1968 Rev § 16.440), authorizes the department to cancel assistance upon failure of a recipient to file with the department a statement of financial condition within 30 days after demand for such a report. See the discussion of § 01 of the act, infra. See, for example, the declaration of policy contained in the act’s title. MOLA § 400.10 (Stat Ann 1968 Bev §16.410). And see text accompanying note 10, supra. MCLA §400.10 (Stat Ann 1968 Bey § 16.410). HEW, Handbook of Public Assistance Administration, pt IV, § 2200(d). The inference that § 43 was enacted in response to a Federal requirement under the Social Security Act is supported by the fact that the section was made mandatory only for categorical assistance programs, including ADO, financed in whole or in part by Federal funds. Compare, 1954 Administrative Code, Bules & Begulations of the Michigan Social Welfare Commission, E 400.17: “Eeinvestigation shall be made at least once each year, or more frequently as the probability of change in situation indicates, to determine continuing eligibility and changes in amount of assistance needed.” (Emphasis supplied.) This rule, apparently adopted to implement § 43, makes sense only if “continuing eligibility” is measured by those criteria established under § 56 of the act. See notes 18 and 19, supra, and accompanying text. MOLA §400.61 (Stat Ann 1968 Rev §16.461). Whether the department would be justified in withholding any portion of the ADO grant allocable to plaintiff under the act is a question not presented. The record does not reveal whether plaintiff’s needs were considered in determining the amount of the ADC grant. Moreover, the department has not argued this question either on appeal or at the trial below. Assuming, arguendo, that plaintiff: was the recipient of a portion of the grant, the department may be justified as an unpaid creditor in withholding plaintiff’s portion of the grant until she has repaid, or been credited with, the amount defrauded. This was not, however, the action sought to be justified by the department in this ease. Here, the department contends that it may terminate and permanently refuse assistance payable to plaintiff as trustee for her children to be used for their benefit until the defrauder pays baek the amount unlawfully obtained. Our holding is limited to this latter contention.

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Per Curiam. In August of 1963, petitioner was arrested and charged with kidnapping and sexually assaulting a six-year-old girl. A commission of three psychiatrists was appointed under CLS 1961, § 780.504 (Stat Ann 1954 Rev § 28.967[4]). Petitioner was found to be a criminal sexual psychopath under the statute and was committed to Ionia State Hospital as the result of a hearing under CLS 1961, § 780.505 (Stat Ann 1954 Rev § 28.967[5]) in December of that year. See generally, People v. Holnagel (1963), 371 Mich 347; see also People v. Griffes (1968), 13 Mich App 299. In 1967 petitioner filed a petition for writ of habeas corpus with this court claiming that he was being illegally detained. An order to show cause was granted. Counsel was appointed by the Recorder’s Court for the City of Detroit, and briefs were submitted by the parties. Petitioner does not claim to be cured of his disorder, but claims that he is not being given treatment at the Ionia hospital. He thus contends that he is being illegally detained and should be released so that he might seek treatment elsewhere. The people deny the petitioner’s allegations and assert that petitioner has been uncooperative and has failed to respond to treatment. This court is not the proper forum for determination of these disputed facts. The law is clear that such determination is to be made by the circuit court in the county wherein petitioner is detained. GCR 1963, 712.1[2], In re Kemmerer (1944), 309 Mich 313. For as the Kemmerer court said at p 317: “ [H] e is entitled to proper care such as his condition and the good of society demands. If he is not receiving it * * * , he can always present a petition for habeas corpus preferably to the circuit court [of the county wherein he is detained] where proper and full inquiry can be made into the facts.” The constitutionality of the statute under which petitioner was committed was upheld because it was interpreted as a civil rather than criminal proceeding. People v. Chapman (1942), 301 Mich 584. Although PA 1939, No 165, the so-called criminal sexual psychopath act, has been repealed by PA 1968, No 143, the civil nature of the commitment and detention of persons such as petitioner remains unchanged. Therefore, if petitioner is in fact not receiving treatment, the principle invoked in In re Maddox (1958), 351 Mich 358, would apply. In the Maddox case, the petitioner was a criminal sexual psychopath who was committed under the statute to receive “curative treatment” but found himself in Southern Michigan Prison being treated as an ordinary prisoner. The Maddox court found such incarceration to be an unconstitutional deprivation of liberty. Here, the place of confinement is “an appropriate state institution” within the meaning of the statute under which the petitioner was committed, CLS 1961, § 780.505 (Stat Ann 1954 Rev § 28.967[5]), but this does not diminish the state’s obligation to him. He is entitled to proper care and treatment. In re Kemmerer, supra; In re Maddox, supra. Although §7 of PA 1939, No 165 (CLS 1961, § 780.507 [Stat Ann 1954 Rev § 28.967(7)]) has been repealed by PA 1966, No 267, we find that the right to treatment where detention is upon commitment for a mental disorder and not upon a finding of guilt-on the substantive crime remains inviolate. The other issues which petitioner seeks to raise here with regard to the discharge provisions of PA 1968, No 143 (MOLA § 330.35b [Stat Ann 1969 Rev § 14.825(2)]) (which repealed PA 1939, No 165) are disposed of by an Administrative Order of the Supreme Court issued October 21, 1969, which says: “It appearing upon repeal of PA 1939, No 165, that jurisdiction to hear petitions to test the recovery of persons committed as criminal sexual psychopaths under the provisions of said act remains unresolved, that proceedings in various courts wherein relief has been sought have been dismissed with the result that a situation has continued for several months wherein the proper forum for reviewing the propriety of continued custody of persons committed under the provisions of said law remains in question, that protection of the basic rights of such persons and the uninterrupted administration of justice requires designation of a proper forum for hearing said matters until such time as the legislature shall provide clarification, now therefore, pursuant to the provisions of Constitution 1963, art 6, § 13, and PA 1961, No 236, § 601, the revised judicature act. “It is ordered, that until such time as there is further legislative clarification of jurisdiction of proceedings for testing recovery of persons committed under the provisions of said PA 1939, No 165, as amended, jurisdiction shall continue and proceedings shall he conducted in accordance with the provisions of section 7 of said act, CL 1948, § 780.507, as amended by PA 1952, No 58 (Stat Ann 1954 Rev § 28.967[7]). “This order shall constitute a rule of the Supreme Court within Constitution 1963, art 6, § 13, and shall be effective as of August 1, 1968, the date of effect of the repeal of PA 1939, No 165, as amended.” No 1969-4, 382 Mich xvii. Petitioner’s contention that he is not being given treatment at Ionia State Hospital is remanded to Ionia Circuit Court for hearing. Remanded. See Rouse v. Cameron (1966) 125 App DC 366 (373 F2d 451), and the controversy which it has generated. The Rouse controversy is perhaps most completely explored at a Wayne State University Law School symposium on The Mentally 111 and Implementing the Right to Treatment, which has been published in 86 Chi L Rev 742-801 (1969).

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Per Curiam. Defendant, Barry Davis, and two others were charged with the breaking and entering of a business place with intent to commit a larceny or felony therein pursuant to MCLA § 750.110 (Stat Ann 1968 Cum Supp §28.305). On August 12, 1968, defendant being represented by counsel tendered a plea of guilty to the lesser included offense of attempted breaking and entering with intent to commit larceny under MCLA § 750.92 (Stat Ann 1962 Rev § 28.287) . After questioning defendant Davis, the court accepted the guilty plea and on September 16, 1968, defendant was sentenced to serve four to five years in prison. Defendant now brings this appeal. The only issue with which we are faced is whether the trial court committed reversible error in accepting defendant’s plea of guilty. Defendant argues that his plea was accepted in contravention of GCR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). The main thrust of this argument is that the proceedings failed to establish a “breaking”. A review of the record discloses that defendant, in his own words, described entering the particular business establishment on a Sunday morning by pushing open a door. Authority dictates that the slightest force is all that is necessary to constitute a breaking. See 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 1133, p 1527; People v. White (1908), 153 Mich 617; and People v. Lambo (1967), 8 Mich App 320. Furthermore, one of Davis’ codefendants testified that he removed a small plate glass window to gain entry into the business establishment. Another codefendant also described Davis’ participation in these events. Davis, acting in concert with his codefendants, may be punished as if he had directly committed the offense. MCLA § 767.39 (Stat Ann 1954 Rev §28.979). The transcript also discloses that defendant appeared with counsel, was informed of his privilege against self-incrimination and his right to jury trial. There is no question that the plea of guilty was knowingly and voluntarily made. Defendant was apprised of the maximum prison sentence he faced if proven guilty. The events surrounding defendant’s apprehension strongly reinforce his plea of guilty. See People v. Curley (1894), 99 Mich 238. Thus, we find no evidence that a miscarriage of justice resulted from defendant’s plea of guilty. People v. Winegar (1968), 380 Mich 719, 733. Affirmed.

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Fitzgerald, J. This appeal arises from an action by the plaintiff, Herman R. Rasch, to recover sums allegedly due for breach of contract. The dispute arose upon the assignment of four patents from plaintiff to defendant, pursuant to the provisions of two contracts entered into by the parties. The contracts which are the subject of this action are entitled “Agreement in Respect to Inventions and Patent Rights” and “New Employee Patent Policy Announcement.” The complaint states in Count I that defendant failed to compensate plaintiff according to the con tract terms by “special awards” made to employees who assigned to defendant an “especially meritorious invention.” In Count II, plaintiff alleges that no award was made to him on the basis of an “implied promise” or agreement that the company would make a “special award” to those employees who discovered an especially “meritorious invention.” Plaintiff seeks damages in the amount of $20,000,-000. In response to the complaint, defendant filed a motion for summary judgment. Plaintiff filed a motion to amend his complaint pursuant to GCR 1963, 118.5, which was subsequently denied by the court and summary judgment entered for defendant. The trial court held that plaintiff had not stated a cause of action and could not recover under the contract in that there was no legal obligation on the defendants to make a “special award” even though the inventions were “especially meritorious.” It was also held that no recovery could be had on an implied contract theory as the terms of the agreement were embodied in the express contract. The issue with which we are concerned is whether the complaint or the proposed amended complaint state a claim upon which relief could be granted. A review of the applicable court rules indicates that although plaintiff could have filed an amended complaint as a matter of right at any time before summary judgment was entered, he chose not to do so, but, in fact, filed a motion for leave to amend his complaint under GCR 1963, 118.5. 1 Honigman & Hawkins, Mich Court Rules Annotated (2d ed), p 4-13. The trial court reviewed the briefs of the parties on the motion for leave to amend as well as the proposed amended complaint, heard oral argument, and concluded that the proposed amendment also failed to state a claim upon which relief could be granted. In spite of tbe fact that the proposed amended complaint received a complete review by the lower court, we conclude that had it been properly filed as a matter of right, the same result would not have been reached and that plaintiff has been prejudiced thereby. Plaintiff contends that he was denied relief on the assumption that he could not prove his claim. He argues that his designs did prove “meritorious,” and in the absence of any denial in the form of affidavits included within the motion for summary judgment or in an answer to the complaint, his statements must be taken to be true. A thorough review of the complaint and the proposed amended complaint in the instant case discloses a genuine issue of fact. Defendants contend that the only important difference between Count I of the -original complaint and the amended complaint lies in paragraphs 9, 10 and 11, wherein plaintiff asserts that he was to receive a valuable consideration if his invention should prove meritorious, notwithstanding the language of the original agreement. The proposed amended complaint, when considered in a light most favorable to the plaintiff, alleges the existence of an oral agreement. This agreement was allegedly made between the parties for purposes of effecting a modification of the document entitled “Agreement in Respect to Inventions and Patent Rights,” which was signed on Mav 7, 1959. It is a well-established principle that the parties bound by an-agreement, be it written or oral, may alwáys change the agreement by a mutual consent of those involved. Such a modification may be effected either orally or through a writing. However, the burden of proving the modification rests upon the party alleging it. Bishop Electric, Inc. v. Simpson (1967), 7 Mich App 391. Hence, the parol evidence rule does not preclude plaintiff from proving a modification so long as it was subsequent to May 7,1959, the date on which the original agreement was signed. Summers v. Wagner (1891), 87 Mich 272; Johnson v. Douglas (1937), 281 Mich 247. Therefore, on the basis of the allegations recited in the complaint, as well as the,proposed amended complaint, we conclude that a factual issue had been raised as to the existence of a subsequent, modification of the original agreement. The trial court erred in granting defendant’s motion for summary judgment and should have also allowed the proposed amendment. Beversed. Costs to plaintiff. All concurred.

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Y. J. Brennan, J. Defendant Newark-Ferguson Electronics, Inc., appeals from a jury verdict and judgment awarding the widow of a deceased employee, William Dotson, $6,000 in damages, the difference between the life insurance in effect at the time of Dotson’s death and the life insurance that would have been in effect but for the defendant’s failure to apply for it. None of defendant’s six allegations of error, stated in order below, is of merit, and we affirm. 1. There is no evidence of a duty to apply for an increase in coverage. This allegation is belied by the record. It was uncontroverted that under a joint contribution plan with Canada Life Assurance Co., the defendant provided its salesmen with coverage of $4,000, and its supervisors with coverage of $10,000; that under the plan, the defendant was responsible for notifying the insurer of any changes in an employee’s status, including promotions; that while a salesman, Dotson had authorized the defendant to deduct his share of the premium; and that the defendant did not notify the insurer of Dotson’s promotion to supervisor. Defendant’s controller conceded Dotson’s being promoted from salesman to supervisor on October 14, 1966, but claimed that the promotion was probationary up to and including the time of Dotson’s death on March 6,1967. According to the controller, it was the defendant’s unwritten policy not to increase the insurance coverage of a probationary supervisor. To counter this self-serving testimony, the plaintiff acknowledged that the promotion had been probationary during the first month — Dotson receiving a salesman’s salary while performing the duties of a supervisor — and then offered evidence showing that by November 9,1966, the promotion was no longer probationary. This evidence consisted of testimony that Dotson began receiving a supervisor’s salary on November 16; two inter-office memos, one of October 14, 1966, announcing Dotson’s appointment as a “temporary store supervisor,” and one of November 9, 1966, announcing without qualification Dotson’s appointment as a “store supervisor” effective that date; and finally an organizational chart designating Dotson’s position as “store supervisor.” The jury’s finding is amply supported by the evidence. 2. The court erred by barring as irrelevant evidence of a divorce action instituted by Nancy Dotson and pending at the time of Dotson’s death. According to the defendant this evidence is relevant, since, so it is argued, Dotson’s marital troubles caused in him a certain emotional instability, and this instability was, in turn, the cause of his probation. Whether Dotson’s marital troubles indeed caused a certain emotional instability, and whether the emotional instability was indeed the canse for his probation are collateral issues, and therefore the admission of evidence concerning these issues was within the sound' discretion of the court. City of Detroit v. Porath (1935), 271 Mich 42, 64, 66. We perceive no abuse of that discretion, especially since the defendant was given an opportunity to establish its claim of probation with the controller’s testimony. 3. The court erred by declining to instruct the jury that should they find the insurance plan to be a gratuity, they should return a verdict for the defendant. No evidence was adduced by the defendant showing the plan to be a gratuity rather than what it appeared to be from the evidence adduced — part of the compensation due a management employee. Consequently, the instruction would have been unsupported by the evidence and improper. Tortora v. General Motors Corporation (1964), 373 Mich 563. Moreover, the court did tell the jury in a general instruction that they should return a verdict for the defendant should they find the defendant was not under a duty to apply for increased coverage. We find no error. 4. The court erred by declining to instruct the jury that Dotson’s cashing of his paychecks gives rise to a presumption that Dotson knew the coverage amounted to only $4,000. Dotson’s paychecks bore a'notation of the amount deducted from his salary as his share of the premium. The amount noted equalled his share of the premium required for $4,000 in coverage. In light of these notations, the defendant submitted the following request to charge: ' “You are' instructed that the cashing of payroll checks by William G-. Dotson creates a presumption that William Cr. Dotson knew the amount of insurance premium deducted from his payroll.” The court declined the ■ request, saying: “Section B of this relates to a-requested instruction that the cashing of a payroll check, checked by the decedent, created a presumption .that the decedent knew the amount of the insurance premium deducted from his salary, and likewise the amount of the coverage therefore obtained. An attempt to draw any presumption from the proof offered, would have been purely speculative. The employee,' now the decedent, being non-available, it is impossible to do other than speculate what knowledge, if any, he may have had.” We do not differ with this ruling. For all anyone knows, Dotson believed his share remained constant with an increase in coverage. In any event, Dotson was entitled to $10,000 in coverage and had a right under the insurance plan to rely on the defendant to take whatever steps were necessary for the increase in coverage. What he believed his coverage was is irrelevant. 5.. Nayicy Dotson is without standing to sue, either as a third-party beneficiary of the insurance plan or otherwise. .... . The issue was not raised before or during trial, and consequently will not be considered on appeal. Poss v. Rossen-Poss Agency, Inc. (1966), 3 Mich App 726, 729. 6. The court exceeded its authority by adding interest to the jury’s award on its own motion. In Gottesman v. Fea-Bea Construction Co. (1959), 355 Mich 6, the Supreme Court held that a trial court may add interest to an award “where, (1) it is "obvious the jury has failed to award interest, (2) where the claim is liquidated, and (3) where the interest is not a part of the damages but a mere legal incident to the plaintiff’s action.” As in Gottesman, the court in the present case did not instruct the jury on interest, and therefore it seems likely that the jury failed to take interest into account. The damages in the present case, if any, were equal to the difference between the coverage in effect and the coverage that would have been in effect but for the defendant’s failure to apply for it, that is, $6,000, and therefore the damages were liquidated. And finally, the interest was added pursuant to MCLA § 438.7 (Stat Arm 1964 Rev, § 19.4) and was therefore merely incidental to Nancy Dotson’s action. Again we find no error. Affirmed. All concurred.

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Fitzgerald, J. Mergenthaler Linotype Company brought an action against Transamerican Freight Lines, Inc., and Hastings Truck Company, Inc., contending that a linotype machine was damaged by one or both of the defendants while being shipped from New York to Kalamazoo. Plaintiff had sold the machine to the Kalamazoo Gazette and arranged with Transamerican to ship it to Kalamazoo. Mer gen thaler issued a nonnegotiable straight. bill, of lading to “the Kalamazoo Gazette c/o Hastings Truck Co., Inc.” at 738 E. Walnut Street. Transamerican had no dealings with Hastings other than to deliver the machine to them. The Gazette made all arrangements with Hastings in accordance with a longstanding practice. Hastings had been employed to store the machine until the Gazette had room for it, at which time Hastings would deliver and install it. Transamerican delivered the machine to the Hastings warehouse where an employee signed the bill of lading which stated that the property was in apparent good order. There was no visible damage to the shipping container which was then removed and the machine remained under a plastic cover until its. delivery to the Gazette. During ■ the trial, a Hastings employee testified that he noticed some damages to the skids that the machine was shipped on. He described the damage as being splintered wood that looked as if it had been inflicted by the forklift truck used by Hastings employees in unloading the machine from the Transamerican truck. On June 1, 1966, Hastings loaded the machine on one of its trucks and moved it to the Gazette building which was less than a mile away. Upon arrival, the plastic cover was removed and the machine, was placed on an elevator and moved to the installation site on the second floor where a Gazette employee noticed the damage. There was some testimony that because of the presence of metal filings and the fact that broken parts appeared worn, the damage had been inflicted some time earlier. A judgment was eventually granted against Hastings Truck Company,. Inc. A judgment of no cause of action was .entered as to Transamerican Freight Lines, Inc. Several issues are raised on this appeal, the first being the question of whether Transamerican is liable as the initial carrier on a showing that the machine was in good order when received by Transamerican and later appearing damaged when placed at its final destination. During the course of the trial, plaintiff Mergenthaler moved for summary judgment against Transamerican on the grounds that there was no genuine issue as to any material fact. Defendant Hastings avers that it was- error to have ruled against the motion. It is argued that under the facts of the instant case, Transamerican is liable under the Car-mack Amendment to the Interstate Commerce Act, § 13(b) 54 Stat 919 (1940), 49 ITSCA §20(11), which provides in part: “Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State or Territory or the District of Columbia to a point in another State, Territory, District of Columbia, . . . shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass.” During the trial, plaintiff contended that Transamerican, as the initial carrier, was liable under the act if it could be shown that the machine was undamaged when it was placed in the hands of the initial carrier and later appeared damaged when it was delivered at its destination. All of the parties readily agreed that the machine was undamaged when Transamerican took possession and was subsequently damaged between the aforementioned time and when it was uncrated and placed in the Gazette building. Thus, it was on this basis that Mergenthaler claimed it was entitled to a summary judgment against Transamerican. The trial court was of the view that the Hastings Truck Company was not a connecting carrier as contemplated by the statute, supra, and hence Transamerican could not be held liable if the damage took place after Hastings took possession. The court ruled that when Transamerican made delivery to Hastings, this was delivery to the consignee on the bill of lading and damage was inflicted subsequent to delivery. A complete review of applicable authorities indicates that Hastings was not a connecting carrier but rather an agent of the Kalamazoo Gazette and delivery to Hastings constituted delivery to the Gazette. The liabilities of a carrier terminate upon delivery to the consignee. Republic Car Loading and Distributing Co. v. Missouri Pacific Railroad Co. (CA 8, 1962), 302 F2d 381; Continental Tanners, Inc. v. Gonic Footwear, Inc. (1965), 106 NH 297 (210 A2d 480). The Carmack Amendment does not impose liability on Transamerican, for the act applies to a carrier receiving goods “for transportation from a point in one state or territory or the District of Columbia to a point in another state, territory, District of Columbia . . . .” 49 TJSCA § 20(11). In the instant case, Transamerican received the machine at one point, New York, for transportation to another point, the Hastings Truck Company in Kalamazoo. Transamerican had no agreement for any further movement and it did not accept goods for shipment “to a point on another line.” The Gazette had a longstanding arrangement with Hastings for the latter to receive, store, and install equip ment, which was totally separate and independent of Transamerican’s agreement to ship the machine to Hastings. Therefore, here, as in Rhoades, Incorporated v. United Air Lines, Incorporated (CA3, 1965), 340 F2d 481, there was no connecting carrier relationship and the Carmack Amendment is not controlling. We are also asked to consider whether the decision of the trial court that the machine was damaged while in the possession of the Hastings Truck Company was clearly erroneous and against a preponderance of the evidence. Under GrCR 1963, 517.1, the findings of a trial court sitting without a jury are to he reversed only when they are clearly erroneous. An examination of the record discloses the existence of a delivery receipt by Hastings’ employee. This established prima facie that the machine was received in apparent g’ood order. Louisiana Southern Ry. Co. v. Anderson, Clayton & Co. (CA 5, 1951), 191 F2d 784. Hastings failed to produce any evidence which would show that the machine was broken when it was delivered to them by Transamerican. The fact that no one noticed anything unusual about the machine until it was placed on the second floor of the Gazette building is evidence of the fact that it was damaged at a later rather than earlier point in time. The trial court also noted that Hastings had to load the machine onto a forklift, take it to the second floor and unload it, while Transameriean had only to load it once. While, there was some contradictory evidence, such as the testimony that the broken parts of the machine had been rubbing together for some time, indicating that the break was an old one, the court did have sound evidence before it from which it could logically conclude that the machine was broken while in the possession of Hastings. In light of this evidence, we cannot say that the trial court’s findings were clearly erroneous. Tann v. Allied Van Lines, Inc. (1965), 5 Mich App 309. Affirmed. Costs to appellees. All concurred.

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Per Curiam. Plaintiff Northtown Transit Mix, Inc. (hereinafter Northtown) filed the instant suit to enjoin defendant Manufacturers National Bank (hereinafter the Bank) from proceeding with its foreclosure action commenced after the Bank had declared a secured loan it had made Northtown in default. Appellant LeRoy Hosner, surety for the loan, moved to intervene as defendant. The motion was granted and Hosner filed an answer and counterclaim against Northtown. Hosner also obtained writs of garnishment which the circuit court later dismissed. Subsequently, the original parties reached an agreement and joined in a motion to dismiss. Hosner objected. The motion was granted, but without prejudice to Hosner’s counterclaim. Hosner brings this' ap'pehl as of right. The Bank has filed a motion to dismiss or affirm pursuant to G-CR1963, 817.5(1), (3). Hosner’s appeal from the order dismissing the writs of garnishment is not before the Court because an appeal from that order was not taken within the time allowed by GCR1963, 803.1. ■ It is Hosner’s position on appeal, without citation of authority, that the dismissal below was ’“clearly prejudicial” to his counterclaim against Northtown and was injurious to his rights as surety. Hosner does not give any reasons why the dismissal was prejudicial to his counterclaim and our review of the record does not disclose any reason. Moreovér, the trial court’s judgment of dismissal specifically provides: “that the counterclaim of intervening .defendant shall be dismissed without prejudice.” (Emphasis supplied.) Hosner also fails to explain why the dismissal injured his position as surety and does not allege that the actions taken by the Bank toward settlement with Northtown were contrary to the prbvisions of its contract with Hosner. Also, it appears that the actions were actually beneficial to Hosner’s position of surety. A review of the record and an examination of the briefs make it manifest that the questions sought to be reviewed are without merit. Affirmed.

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Ryan, J. On February 5, 1954, defendant Louis Maurice Smith, then 18 years of age, was committed to the Kalamazoo State Hospital following a series of relatively minor acts of sexual misconduct such as indecent exposure, window peeping and stealing articles of feminine apparel. Eight months after defendant’s commitment a student nurse was found raped and strangled to death in the basement of the hospital. That same day, November 5, 1954, defendant was arrested and charged with her murder. On November 17, 1954, a preliminary examination was conducted at which the evidence, including the defendant’s confession, indicated that the crime of murder had been committed and that there was probable cause to believe the defendant committed it. As a result, the defendant was bound over to the circuit court for further proceedings on the charge of murder. On November 22, 1954, Smith was arraigned upon the information in the circuit court on the murder charge. He stood mute and a plea of not guilty was entered in his behalf by the court. Shortly after defendant’s arraignment on the charge of murder his father filed a petition under MCL 780.501-780.509; MSA 28.967(l)-28.967(9), hereinafter known as the Criminal Sexual Psychopath Act, or the CSP act, praying that the court conduct a hearing to determine whether the defendant was a criminal sexual psychopathic person. The court granted the petition and appointed three qualified psychiatrists to examine the defendant and file with the court a written report of their examinations together with their conclusions. In due course the report was filed in which the psychiatrists unanimously concluded that defendant was a criminal sexual psychopathic person and recommended that he be committed to the state hospital commission for treatment. After considering the psychiatric report, expert testimony and other evidence, the court determined that defendant was a criminal sexual psychopathic person and, pursuant to. §§ 5 and 7 of the Criminal Sexual Psychopath Act, ordered him to be committed to the state hospital commission to be confined in an appropriate state institution until fully and permanently recovered from such psychopathy to a degree that he would not be a menace to others. Based upon the determination that defendant was a criminal sexual psychopathic person, the criminal action then pending against defendant was barred by § 8 of the act. Defendant spent the next 18 years confined under maximum security conditions in Ionia State Hospital. During this period of confinement the criminal sexual psychopath statute was repealed by 1968 PA 143. Pursuant to § 1 of Act 143, persons who had been committed by a criminal court as criminal sexual psychopaths under the provisions of the former act remained confined in state institutions under the jurisdiction of the state Department of Mental Health. By Administrative Order 1969-4, this Court continued the release provisions of § 7 of the Criminal Sexual Psychopath Act. In 1972, defendant was asked whether he would be willing to be a research subject for experimental psychosurgery in a project which had been initiated at the Lafayette Clinic in Detroit. He agreed and shortly thereafter was transferred to the clinic. Before the experimental treatment had actually begun, the project became publicly known and a taxpayer suit was instituted in Wayne Circuit Court to prevent its continuation. Defendant, designated as John Doe in order to protect him from inappropriate publicity, was the named plaintiff in the action. A three-judge trial court was impanelled to resolve the matter. Prior to consideration on the merits, the court appointed counsel to represent defendant and 23 others similarly situated. Among other things, defendant’s court-appointed counsel challenged the constitutionality of the Criminal Sexual Psychopath Act under which defendant was committed. The three-judge court found merit in the challenge and concluded that John Doe was unconstitutionally detained. Essentially, the court reasoned that the standards for commitment under the Criminal Sexual Psychopath Act were less stringent than the standards otherwise applicable for commitment civilly, and the standards for release under the former act were more stringent than for release under the latter. The court concluded that the differences in the standards did not meet the requirements of present day Fourteenth Amendment equal protection. Accordingly, the detention of John Doe was held to be unconstitutional. Despite finding his commitment unconstitutional, the court did not order defendant’s release until April 9, 1973, nearly three weeks after the entry of its opinion. Prior to the entry of the release order, the assistant attorney general informed the court that the state, after consideration of all the facts and circumstances in the case, had decided not to institute civil commitment proceedings against the defendant. On the date the Wayne Circuit Court issued the order releasing defendant from his commitment, the prosecutor’s office for Kalamazoo County filed a petition for a bench warrant in the circuit court for the County of Kalamazoo to apprehend and return defendant to Kalamazoo for disposition of the murder charge. On May 3, 1973, defendant filed a motion for hearing on the petition for bench warrant and a motion to quash the information. The motions were based upon the contention that the reinstitution of criminal proceedings based upon the 1954 homicide was barred by § 8 of the repealed Criminal Sexual Psychopath Act and that the prosecution would violate defendant’s right to a speedy trial. Following a hearing, the Kalamazoo Circuit' Court, on December 14, 1973, issued an opinion rejecting defendant’s contentions and authorizing a bench warrant. On January 9, 1974, at the request of the defendant and upon stipulation of the people, the trial court entered an order staying the proceedings in this case until a decision was made by the Court of Appeals. On January 8, 1975, the Court of Appeals affirmed the judgment of the circuit court. 57 Mich App 556; 226 NW2d 673 (1975). Thereafter, the people moved to discharge the stay of proceedings. Defendant, on February 10, 1975, petitioned this Court for immediate consideration of the issue. Meanwhile, the trial proceeded through the normal course of motions, hearings and pleadings. On February 12, 1976, this Court rendered an order allowing trial to continue in the matter. 396 Mich 955 (1976). On February 14, 1976, trial commenced in the circuit court for the County of Kalamazoo. The sole defense asserted at trial was that of insanity. The jury rejected the insanity defense and found the defendant guilty of second-degree murder. Pursuant to the order rendered by this Court on February 12, 1976, defendant appeals directly to this Court. Appellant’s principal contention is that § 8 of the CSP act prohibited the state from trying him for the 1954 homicide. Statutes designed to cope with sex offenders, who because of a psychopathic condition commit or have the propensity to commit such offenses, developed in the late 1930’s and 1940’s. The intent of such statutes was to provide civil commitment, segregation and treatment of sexual psychopathic persons rather than criminal punishment, the ineffectiveness of which, as a deterrent, had been demonstrated in the behavior of a number of recidivist sex offenders. The statutes manifested legislative recognition that sexual psychopaths presented a different or unique criminal problem and as such should be distinguished from and treated differently than the ordinary class of criminals. As expressed in People v Piasecki, 333 Mich 122, 142; 52 NW2d 626 (1952): "By the adoption of the act here in question the legislature sought to provide for the protection of the public against persons who, while not insane or feeble-minded, present a serious problem. The method prescribed for the care and treatment of such persons rests on the theory that because of their mental condition they should not be classed as criminals in the ordinary sense of the term, nor subjected to punishment as such for acts resulting from the psychopathic condition or mental disorder.” The criminal sexual psychopath statutes enacted in various jurisdictions were substantially the same, particularly with respect to their definition of a criminal sexual psychopathic person. Essentially, a sexual psychopath was defined as a person who, while not insane or feeble-minded, had a mental disorder coupled with propensities toward the commission of criminal sex offenses. Although the various sexual psychopath statutes were substantially consistent in defining a sexually psychopathic person, they diverged somewhat in delineating the effect the adjudication of psychopathy had upon the underlying or pending criminal charge. For instance, some jurisdictions enacted sexual psychopath statutes under which criminal proceedings were abeyant until such time as the defendant was discharged from hospitalization. Other states had statutes which provided that a condition of sexual psychopathy did not constitute a defense to a criminal charge nor did it abrogate defendant’s liability to be tried for the offense. Michigan’s statutory approach to a conviction or charge pending against a defendant at the time he was adjudged to be a criminal sexual psychopath was unique among those states adopting sexual psychopath statutes because of the bar-to-prosecution provision of § 8. In the case before us defendant focuses upon this unique statutory bar and argues that he was finally adjudged a criminal sexual psychopathic person, the consequences of which inhere in him. He concludes that once the final determination of psychopathy was made, the state is prohibited from prosecuting him regardless of what may occur in the future. In opposition, the prosecutor argues that the Wayne circuit decision in John Doe v Dep’t of Mental Health wholly voided the Criminal Sexual Psychopath Act and nullified all effects of the statute since its inception. The courts below agreed with the prosecutor’s conclusion, noting that under generally applicable legal principles an unconstitutional law is, in legal contemplation, inoperative as if it had never been passed. Accordingly, the Court of Appeals affirmed the trial court’s ruling that § 8 of the repealed CSP act did not prohibit the prosecution of defendant on the 1954 murder charge. 57 Mich App 556; 226 NW2d 673 (1975). The traditional notion that a statute declared unconstitutional is in law a nullity from its inception is a legal fiction of judge-made origin which serves to supply logical symmetry to judicial declarations that a specific legislative pronouncement was beyond legislative capacity. In the early case of Norton v Shelby County, 118 US 425, 442; 6 S Ct 1121; 30 L Ed 178 (1886), the United States Supreme Court declared that "[a]n unconstitutional statute * * * confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed”. This Court recognized the same principle in Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160, 165; 150 NW2d 752 (1967), observing "an unconstitutional statutory provision though in form and name a law is from the beginning no law at all; * * * the invalidity thereof dates from the time of enactment * * * and * * * such a provision is at no time effective for any purpose”. It is not a rule without exceptions, however. Like all rules of law its wooden application, resulting in fundamental injustice, is intolerable. In the recent case of Lemon v Kurtzman, 411 US 192; 93 S Ct 1463; 36 L Ed 2d 151 (1973), the United States Supreme Court acknowledged approvingly its repeated departure from its own early nullity ab initio view in Norton, supra. After citing a litany of the criminal cases in which newly declared constitutional rights for the protection of defendants have been declared to have no retroactive application, and civil cases in which electoral laws and municipal financing statutes have been struck down while the effect of actions taken under them is upheld, the Court cited the case of Chicot County Drainage Dist v Baxter State Bank, 308 US 371, 374; 60 S Ct 317; 84 L Ed 329 (1940), in which former Chief Justice Hughes wrote: "It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most diffi cult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” Finally, the Lemon Court observed: "However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.” Like the United States Supreme Court, we perceive no compelling reason to confine the modern approach of excepting extraordinary cases from the traditional rule of retroactivity to those "constitutional cases involving criminal procedure or municipal bonds * * *”. We find the extraordinary facts and circumstances of the case before us to comprise a classic example of justification for departure from the general rule of total ab initio nullity applied in the courts below. Section 8 of the since repealed Criminal Sexual Psychopath Act provides: "No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.” This provision is an unequivocal legislative declaration that persons finally adjudged criminal sexual psychopaths would be forever insulated from the punitive sanctions normally imposed for criminal conduct. The theory was that because of their mental condition such persons should not be classed as criminals in the ordinary sense of the term nor subjected to punishment as such for acts resulting from their psychopathic condition or mental disorder. People v Piasecki, supra, at 142. The legislation expressed a considered public policy that persons adjudged sexual psychopaths were less culpable for their actions because of their mental disorder and therefore would not be punished as criminals in the ordinary sense. In support of that policy, the State of Michigan assured Louis Smith that if he was finally adjudged a criminal sexual psychopath upon a hearing in which he would be denied the exercise of virtually the whole panoply of constitutional protections which were otherwise his as a defendant in a criminal prosecution, which afforded him fewer protections than those extended to one whose commitment is sought as a mentally ill person and which could result in his confinement in a mental institution for an indefinite term, conceivably the rest of his life, that he would never be "tried or sentenced upon the offense with which he originally stood charged * * *”. Such an adjudication was made in January, 1955. The determination was deemed to be final and was acted upon accordingly. Smith was given the status of a criminal sexual psychopathic person and for 18 years was confined in a mental hospital in consequence of the imposition of such status, until he was released by the trial court which found his confinement to have been ordered under an unconstitutional statute. There then ensued an effort to prosecute him for the homicide committed 18 years earlier. In opposing Smith’s request that the bar of § 8 of the Criminal Sexual Psychopath Act be enforced, the prosecutor relies upon the legal fiction that since the act was a nullity from its inception, the state’s assurance to Smith that he would never be tried or sentenced is likewise a nullity. Thus the solemn promise of the sovereign is broken in the name of constitutional construction. We think that comports neither with traditional notions of fundamental fairness in the classic constitutional sense, nor the more elemental and compelling principles of fundamental human justice rooted in the natural law. A more classic case of "status” established and "prior determinations deemed to have finality and acted upon accordingly”, of which Justice Hughes wrote in Chicot, than the one before us would be hard to imagine. Smith’s status as an adjudicated criminal sexual psychopath inheres in him. It cannot be erased, or forgotten, or undone, any more than can his 18 years of confinement thereunder. They are for all time a reality of his life. The § 8 permanent bar to prosecution is in every sense of the word an inextricable part of that status and similarly cannot be erased, forgotten or undone. It, too, inheres in him. It is our duty to enforce it. We do not undertake to fit today’s decision into any of the conveniently familiar constitutional pigeonholes such as double jeopardy, speedy trial, collateral estoppel, due process or the like. Those constitutional doctrines do not neatly dispose of the unusual facts before us. This is the occasional aberrant case which leaves lawyers and judges groping for familiar legalese with which to tag it and in search of a familiar doctrinal groove into which it might fit. In truth, none exist. It is a case without precedent and very likely without duplicate hereafter. It calls for this Court to eschew familiar formulae and declare simply and clearly what justice requires and why. For the reasons stated, we declare that it requires that the decision of the Court of Appeals be reversed and Louis Smith’s conviction be vacated and that he be discharged from custody forthwith. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J. Repealed by 1968 PA 143. Because we are persuaded it will be of assistance to the reader, we reluctantly burden the case report by reproducing the now repealed Criminal Sexual Psychopath Act as it read in Compiled Laws of 1948. "Sec. 1. Any person who is suffering from a mental disorder and is not insane or feeble-minded, which mental disorder has existed for a period of not less than 1 year and is coupled with criminal propensities to the commission of sex offenses is hereby declared to be a criminal sexual psychopathic person. "Sec. 2. Jurisdiction of criminal sexual psychopathic persons charged with criminal offense is vested in the circuit courts of the state, the recorders court of the city of Detroit, and the superior court of the city of Grand Rapids. "Sec. 3. When any person is charged with a criminal offense, or has been convicted of or has pleaded guilty to such offense and has been placed on probation, or has been convicted or pleaded guilty to such offense but has not yet been sentenced, and it shall appear that such person is a criminal sexual psychopathic person, then the prosecuting attorney of such county, or the attorney general, Or some one on behalf of the person charged, may file with the clerk of the court in the same proceeding wherein- such person stands charged with, or has been convicted of, or has pleaded guilty to such criminal offense, a statement in writing setting forth facts tending to show that such person is a criminal sexual psychopathic person. "Sec. 4. Upon the filing of such statement by the prosecuting attorney or the attorney general the court shall, or if filed on behalf of the accused the court may, appoint 2 qualified psychiatrists to make a personal examination of such alleged criminal sexual psychopathic person who shall file with the court a report in writing of the results of their examination together with their conclusions. Said report shall be open to the inspection of the counsel for the accused, but shall not be competent evidence in any other proceeding against accused except the hearing to inquire into his alleged psychopathy. Said alleged psychopath shall be required to answer the questions propounded by such psychiatrists under penalty of contempt of court. In the event that both of such psychiatrists in such report state their conclusions to the effect that such person is a criminal sexual psychopathic person, then proceedings shall be had as provided in this act prior to a trial of such person upon the criminal offense with which he then stands charged, or prior to sentence if he then stands convicted and has not been placed on probation, or prior to completion of probation sentence. "Sec. 5. Upon a hearing held for that purpose the court without a jury, unless a jury is demanded prior to said hearing and within 15 days after the filing of the last of said reports, shall ascertain whether or not such person is a criminal sexual psychopathic person. Upon such hearing it shall be competent to introduce evidence of the commission by such person of any number of similar crimes together with the record of the punishment inflicted therefor. If such person is determined to be a criminal sexual psychopathic person, then the court shall commit such person to the state hospital commission to be confined in an appropriate state institution under the jurisdiction of either the state hospital commission or the department of corrections until such person shall have fully and permanently recovered from such psychopathy. "Sec. 6. The state hospital commission shall have the right to release such person upon parole to such persons and under such conditions as his condition, in the judgment of the state hospital commission, merits. "Sec. 7. Such criminal sexual psychopathic person shall be discharged only after he shall have fully recovered from such psychopathy. At any time, when he shall appear to have so recovered, a petition in writing setting forth the facts showing such recovery may be filed with the clerk of the court by which he was committed and such court shall proceed to determine whether or not he has fully recovered from such psychopathy. Jury trial of such issue may be had, if demanded before the trial of said issue and within 15 days after the filing of such petition. If, following such hearing, such person is found to have fully recovered from such psychopathy, then the court shall order such person to be discharged from the custody of the state hospital commission. In the event such person is found to have not fully recovered from such psychopathy, then the court shall order such person to be returned to the custody of the state hospital commission to be held under the previous commitment of such person. "As long as such psychopath shall remain in the custody of the department of mental health of the commission he shall be examined at least once a year by 2 psychiatrists appointed by the commission who shall report in writing their findings including therein any facts tending to show appearance of recovery, to the committing court and to the commission. These reports shall thereafter be available to such committed person’s attorney for use in petitions for discharge, and also as evidence at any hearings on such petitions if so requested by petitioner, by the prosecutor or by the court. "Sec. 8. No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition. "Sec. 9. The state shall defray all expenses of such person while so confined in a state institution and may recover the amount so paid from such person.” John Doe v Dep’t of Mental Health, Wayne County Civil Action (Docket No. HC-73-19434-AW). See, e.g., In re Stone, 87 Cal App 2d 777; 197 P2d 847 (1948); People v Sims, 382 Ill 472; 47 NE2d 703 (1943). See, e.g., State ex rel Pearson v Ramsey County Probate Court, 205 Minn 545; 287 NW 297 (1939), aff'd 309 US 270; 60 S Ct 523; 84 L Ed 744 (1940).

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Jansen, J. Plaintiff, Jack C. Chilingirian, appeals as of right from the trial court’s August 28, 1989, order granting defendants’ motion for summary disposition pursuant to MCR 2.116(0(10). We affirm. On December 8, 1983, defendant City of Fraser retained the law firm of Berschback, Kerwin, Locicero, Brennan and Chilingirian as legal counsel for the city. Plaintiff is a member of the firm and was responsible for much of the city’s litigation. On July 23, 1987, the individual defendants, in their capacity as city council members, voted to dismiss plaintiff from all city business effective August 1, 1987. Plaintiff filed suit against defendants on October 19, 1987, alleging that his termination as city attorney constituted a violation of the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. Specifically, plaintiff alleged that his discharge was prompted by his investigation into certain irregularities and potential violations by the city relating to a loan agreement between the city and the Michigan Department of Transportation. Defendants moved for summary disposition on April 17, 1989, alleging that plaintiff was not entitled to the protection of the wpa because he was not an employee of the city, but, rather, an independent contractor. Defendants also argued that the wpa was inapplicable because at the time plaintiff was discharged, he was not about to report any violations of the loan agreement. Plaintiff responded by arguing that the definition of "employee,” as contained within the wpa, was broad enough to cover independent contractors. Plaintiff also alleged that he was protected under the wpa because he was about to report a suspected violation. Finally, plaintiff alleged that summary disposition was improper because factual disputes existed regarding the motive, intent, and factual context of his termination. On August 28, 1989, the trial court issued its opinion and order granting defendants’ motion for summary disposition. The trial court, by employing the "control test,” found that plaintiff "was not a person under a contract of hire, but an independent contractor.” The trial court concluded that the wpa "is not available to this non-employee” and therefore it would be impossible for plaintiff to support his claim at trial. On appeal, plaintiff contends that the trial court erred in granting defendants’ motion for summary disposition on the basis of its finding that plaintiff was an independent contractor and therefore not entitled to the protection afforded by the wpa. We disagree with plaintiff. This Court has recognized a "public policy” exception to the general rule that employment at will may be terminated at any time for any reason. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). This exception is based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. Id. These proscriptions are most often found in explicit legislative statements prohibiting discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. Id. The wpa is one such statute. Id. The wpa seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law. Hopkins v City of Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987). Inherent in the wpa is a purpose to protect the public by protecting employees who report violations of laws and regulations. Id.; Chilingirian v City of Fraser, 182 Mich App 163, 165; 451 NW2d 541 (1989). Pursuant to MCL 15.362; MSA 17.428(2): An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. The wpa defines an employee as "a person who performs a service for wages or other remuneration under a contract of hire, written or oral, expressed or implied,” including employees of the state or one of its political subdivisions, but excluding the state classified civil service. MCL 15.361(a); MSA 17.428(l)(a). A person is defined as "an individual, sole proprietorship, partnership, corporation, association, or any other legal entity.” MCL 15.361(c); MSA 17.428(l)(c). We are of the opinion that although the trial court correctly concluded that plaintiff was an independent contractor not afforded the protection of the wpa, it utilized the wrong test in reaching this result. The trial court stated that the "test as to whether one is an independent contractor is one of control, not economic reality.” With this statement we cannot agree. The "control test” has been limited to those situations where respondeat superior has been alleged and the vicarious liability of a master is involved. Nichol v Billot, 406 Mich 284, 297; 279 NW2d 761 (1979); Parham v Preferred Risk Mutual Ins Co, 124 Mich App 618, 624; 335 NW2d 106 (1983). The control test has been abandoned as the exclusive criterion by which the existence of an employee-employer relationship, for the purpose of remedial social legislation, is determined. Goodchild v Erickson, 375 Mich 289, 293; 134 NW2d 191 (1965). Because vicarious liability of a master is not alleged herein, we find the control test to be inappropriate. Nichol, p 297. The test to be employed is one of "economic reality.” Goodchild, p 293. The economic reality test looks to the totality of the circumstances surrounding the work performed. Derigiotis v J M Feighery Co, 185 Mich App 90, 94; 460 NW2d 235 (1990). Relevant factors to consider under the test include: (1) control of a worker’s duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal. Id.; Parham, p 623. All the factors are viewed as a whole and no single factor is controlling. Derigiotis, p 95. In the present case, it is clear that plaintiff was not "in-house” counsel for the city. The city was only one of the law firm’s clients, and the law firm provided legal services to a number of other clients. Plaintiff did not maintain an office on the city’s premises, but instead maintained his own office and had his own support staff at his firm’s location. Plaintiff was not involved in the city’s pension program and the city did not pay plaintiff’s salary. Instead, plaintiff would bill the city on a monthly basis at an hourly rate for the services rendered. Finally, plaintiff was not subject to the control of the city with respect to the method of his work, but only with respect to the results to be achieved. We are of the opinion that these facts establish that plaintiff was an independent contractor engaged in his own independent business. Plaintiff did not devote all of his time to work for the city, and he held himself out to the public as performing an independent business. We believe that the trial court correctly concluded that plaintiff was an independent contractor and not an employee of the city. Plaintiff and his law firm were merely independent contractors acting on behalf of their client, the city. Williams v Logan, 184 Mich App 472, 478; 459 NW2d 62 (1990). Summary disposition was proper, because it is impossible for plaintiff to support his claim at trial. Wagner v Regency Inn Corp, 186 Mich App 158, 166; 463 NW2d 450 (1990). Plaintiff also contends that the doctrines of collateral estoppel and res judicata, as they relate to the plaintiff’s other action in the federal courts, are not applicable in the present case. However, as plaintiff admits in his brief on appeal, the trial court did not address this issue. Accordingly, review of this issue on appeal is inappropriate, because our review is limited to those issues actually decided by the lower court. Preston v Dep’t of Treasury, 190 Mich App 491, 498; 476 NW2d 455 (1991). We therefore refrain from addressing this issue. Affirmed.

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Memorandum Opinion. Defendant was convicted of assault with intent to rob being unarmed, and appeals. The people-have filed a motion to affirm. Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm granted.

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Per Curiam. Plaintiffs appeal as of right the Wayne Circuit Court’s orders granting defendants’ motions for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10) of plaintiffs’ warranty, negligence, and loss of consortium claims in an action arising out of a collision between Sam Westry’s motorcycle and an automobile. Plaintiffs seek recovery from Bell Helmets, Inc., as the manufacturer of Westry’s motorcycle helmet and from Anderson Sales and Service as the retailer of the helmet. We affirm. On September 26, 1986, Sam Westry was riding his motorcycle in a westerly direction on Plymouth Road in the City of Detroit. An automobile made a left turn in front of Westry, who wound up sliding under the automobile. Westry’s head became lodged under the front end of the vehicle near one of the tires. Bystanders at the scene of the accident lifted the front of the vehicle to free Westry. As a result of the accident, Westry sustained serious head injuries that prevent him from recalling any of the circumstances surrounding either the accident or the purchase of the helmet. Plaintiffs filed this lawsuit against defendants, alleging negligent manufacture or defect of the helmet, failure to adequately warn Westry of the helmet’s limitations, and breach of an implied warranty of merchantability. Defendants moved for summary disposition on the grounds that plaintiffs failed to state legal claims and that there were no genuine issues of material fact. Donald L’Heureux, vice president of Bell Helmets, attested to the fact that the type of helmet used by Westry met the standards set by the Snell Memorial Foundation, the most stringent standards that existed for the manufacture of motorcycle helmets. This permitted Bell Helmets to place a Snell sticker on the helmet. The sticker provided as follows: WARNING — SOME REASONABLY FORESEEABLE IMPACTS MAY EXCEED THIS HELMET’S CAPACITY TO PROTECT AGAINST SERIOUS INJURY. L’Heureux also averred that Bell Helmets put a second warning sticker on its helmets and that this warning conformed to Standard Z90.1(b) of the American National Standards Institute and provided: WARNING! NO HELMET CAN PROTECT THE WEARER AGAINST ALL FORESEEABLE IMPACTS. As a result of his head injuries, Westry was unable to recount any of the circumstances surrounding the purchase of the helmet. The helmet itself could not be found after it was examined and photographed by the police. Linda Westry stated that she did not hear any of the conversation between her husband and the salesman for Anderson on the date of purchase. The trial court ultimately ruled that Bell Helmets was under no duty to warn purchasers of the particular dangers involved in this case, which were characterized as "open and obvious.” The trial court also concluded that plaintiffs failed to assert genuine issues of material fact that the helmet was negligently manufactured or designed. A motion for summary disposition based on the failure to state a claim tests the legal sufficiency of the claim. MCR 2.116(C)(8); Bivens v Grand Rapids, 190 Mich App 455, 457; 476 NW2d 431 (1991). The motion is to be decided on the pleadings alone, and all well-pleaded facts and reasonable inferences drawn from them are taken as true. Bivens, supra. In negligence cases, summary disposition is properly granted under MCR 2.116(C)(8) if the trial court determines as a matter of law that the defendant owed no duty to the plaintiff. Bivens, supra; Sierocki v Hieber, 168 Mich App 429, 433; 425 NW2d 477 (1988). A trial court presented with a motion for summary disposition brought on the basis of a failure to state a genuine issue of material fact must give the benefit of reasonable doubt to the nonmovant and must determine whether a record might be developed that could leave open an issue with regard to which reasonable minds could differ. Arbelius v Poletti, 188 Mich App 14, 18; 469 NW2d 436 (1991). All inferences are to be drawn in favor of the nonmovant. Id. Before summary disposition may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Id. In a negligence action, the question whether a duty exists is for the court to decide. See Etter v Michigan Bell Telephone Co, 179 Mich App 551, 555-556; 446 NW2d 500 (1989); Tame v A L Damman Co, 177 Mich App 453, 455; 442 NW2d 679 (1989). Plaintiffs cite no authority for the proposition that manufacturers of motorcycle helmets have a duty to warn purchasers that a helmet cannot protect against certain types of impact, let alone that such warning must be permanently and conspicuously embossed on the helmet. Moreover, the helmet apparently bore two warning stickers to the effect that the helmet could not protect the wearer from all foreseeable impacts. On the basis of the foregoing, we agree with the trial court’s decision, made as a matter of law, that there was no duty as plaintiffs suggest. See Etter, supra; Tame, supra. Thus, no factual development could lead to a recovery. Therefore, the trial court properly granted defendants’ motions for summary disposition of plaintiffs’ failure-to-warn claim. See Bivens, supra; Sierocki, supra. Plaintiffs also assert that summary disposition was inappropriate because there was evidence of either the negligent design or negligent manufacture of the helmet. As plaintiffs correctly note, circumstantial evidence may be used to prove a defect without a physical examination of the helmet. See, e.g., Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713, 717; 202 NW2d 727 (1972) (possible brake failure in a new truck could be proved by circumstantial evidence where there is other evidence to support an inference that the brakes were defective); but cf. Meli v General Motors Corp, 37 Mich App 514; 195 NW2d 85 (1972) (assertion that a spring on an automobile’s accelerator became disconnected as a result of a defect in manufacture was not a reasonable inference that would remove it from the realm of mere conjecture and preclude the grant of a directed verdict). Review of Linda Westry’s affidavit in response to defendants’ motions reveals plaintiffs’ belief that the helmet would protect Sam Westry from injury and that Linda Westry saw neither any warning stickers on the helmet nor an instruction booklet that was allegedly provided by Bell Helmets. The affidavit does not address the existence of any facts indicating negligent design or manufacture other than those that were alleged in asserting the claim of failure to adequately warn consumers of the danger, a claim that we have already addressed. However, MCR 2.116(G)(4) requires a party faced with a motion under MCR 2.116(0(10) to set forth specific facts showing that there are genuine issues for trial rather than rest on mere allegations in the pleadings. See McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115; 469 NW2d 284 (1991). The inadequacy of Linda Westry’s affidavit to forestall the grant of summary disposition pursuant to MCR 2.116(0(10) is represented by the difference between Snider, supra, and Meli, supra. In Snider, the record contained corroborative evidence of a possible defect in the braking systems of similar trucks, supporting an inference that the defect may have caused the accident. In contrast, the only evidence of defect in the Meli case was the failure of a spring in the plaintiff’s vehicle to work properly. Absent other evidence indicating that the spring’s failure was due to an actual defect rather than another cause, such assertion rested on mere conjecture rather than on permissible inference. Meli, supra at 518. Although the Meli case involved a motion for a directed verdict rather than one for summary disposition, we find its distinction between reasonable inference and mere conjecture instructive. Plaintiffs’ failure to raise specific facts that would turn mere conjecture of a defect in the manufacture or design of the helmet into a reasonable inference does not satisfy the requirements of the court rule. See MCR 2.116(G)(4); McCart, supra. Accordingly, the trial court properly concluded that plaintiffs failed to assert the existence of any genuine issues of material fact with respect to their claim of negligent manufacture or design. See Arbelius, supra. For the same reason, plaintiffs have also failed to support their claim of breach of warranty. Affirmed.

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Memorandum Opinion. Defendant was convicted by a jury of extortion, MCLA 750.213; MSA 28.410. He was sentenced and he appeals. An examination of the record and briefs discloses no prejudicial error. Affirmed.

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Memorandum Opinion. Defendant pleaded guilty to assault with intent to rob while being armed and he appeals. A motion to affirm has been filed by the people. Upon an examination of the briefs and record, it is manifest that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission. Motion to affirm is granted.

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Quinn, P. J. This action was submitted to the trial court for decision on stipulated facts, stipulated issues, and briefs. Plaintiff had judgment and defendant Wonderland Realty Corporation appeals. The facts stipulated are: “1. On July 29, 1965, at Fort Wayne, Indiana, Floren Klopfenstein, as lessee, and A. H. Heine Implement Company, as lessor, executed a certain ‘equipment lease’ a copy of which is attached hereto as Exhibit 1. The subject of said lease was two (2) John Deere 5010 scrapers (which is a large tractor with a built-on scraper blade) and two other items of earth moving equipment. At the time of the execution of the lease the equipment was located in Fort Wayne, Indiana, and shortly thereafter it was delivered by lessor to lessee at Paulding, Ohio. “2. On August 5,1965, the said lease was assigned to plaintiff, John Deere Company. Neither A. H. Heine Implement Company nor John Deere Company knew or consented to the later removal of said equipment to Michigan. The lease agreement was never the subject of a filing or recording in any state. “3. On September 12, 1967, defendant, Wonderland Realty Corporation, as a judgment creditor of Floren Klopfenstein (Ingham County Circuit Civil Action No. 6400-C) executed and levied against the two John Deere 5010 scrapers and the John Deere 1010 back hoe, which equipment was. then in the possession of Floren Klopfenstein in Hillsdale County, Michigan. “4. The instant action was brought by the plaintiff to forestall sale of said equipment pursuant to defendant Wonderland’s levy of execution and to determine the respective priority of the parties’ interests in said agreement. By agreement of the parties, the equipment was valued at sixteen thousand five hundred ($16,500) dollars, which figure is substituted herein for said equipment. The agreement of the parties with respect to sale and substitution and the terms of judgment to be rendered herein is attached hereto and made a part hereof as Exhibit 2.” (A copy of the “equipment lease” is attached hereto.) The first stipulated issue was: “Does the ‘equipment lease’ constitute a ‘security agreement’ under the law applicable to it?” On the basis of a finding that the instrument involved was a lease, and not a security agreement, the trial court decided for plaintiff. We reverse because in our opinion the instrument was a security agreement. MCLA 440.1201(37); MSA 19.1201(37) provides: “ ‘Security interest’ means an, interest in personal property or fixtures which secures payment or performance of an obligation. * * # Unless a lease or consignment is intended as security, reservation of title thereunder is not a ‘security interest’ but a consignment is in any event subject to the provisions on consignment sales (section 2326). Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.” We refer to the “equipment lease” as the agreement. Neither its label nor its form determines what the agreement is. That determination results from an examination of the entire instrument and the ascertainment of its intent and the rights created by it. For a term of 36 months, the so-called lessee was required to pay what is termed rental of $60,592.68, payable $5,049.39 at three month intervals or $20,-197.56 annually (paragraph 1 of the agreement). The lessee could extend the term for succeeding 12 month periods at an annual rental of $1,211.85 (paragraph 3 of the agreement). At the end of the term, lessee had an option to sell the equipment as provided in paragraph 8 of the agreement with final settlement to be made as provided in paragraph 9 of the agreement (paragraph 4 of the agreement). An examination of paragraphs 8 and 9 establishes that any proceeds of sale in excess of the present value of the payments provided in paragraph 1 and remaining unpaid went to the lessee. At a sale, lessee could bid as high as was necessary to become the successful bidder and never pay more than he was obligated to pay under paragraph 1 of the agreement. On termination by the lessee under paragraph 8 of the agreement, the same result is reached, namely: the lessee pays the present value of unpaid payments required by paragraph 1. In the event of default by lessee, he agrees to surrender possession of the equipment to lessor. The latter may accept the equipment in final settlement or sell it and hold lessee for any deficiency of the amount due under paragraph 1 (paragraph 10 of the agreement). All of the foregoing analyses connote a security interest retained by lessor to secure payment, of lessee’s obligation under the agreement. On compliance with the terms of the agreement, it permits lessee to become the owner of the equipment for no additional consideration. The agreement was a security agreement and not a lease. Because of its decision on the first issue, the trial court never reached the remaining issues. We decline to consider them before the trial court has decided them. Reversed and remanded with costs to defendant Wonderland Realty. All concurred. APPENDIX EQUIPMENT LEASE LESSOR: LESSEE: A. H. Heine Imp. Co. Floren Klopfenstein (Name) (Name) Ft. Wayne, Ind. Paulding, Ohio, RR #2 (Mailing Address) (Mailing Address) (City) (State or Province) (City) (State or Province) DESCRIPTION OE UNITS (Give Serial No,) 1 John Deere Model 5010 Scraper #37T6864 1 John Deere Model 5010 Scraper #373R008227 1 John Deere Model 1010 Wheel loader #56786 1 John Deere Model 92 Backhoe #422 1. TERM; RENTAL Lessor hereby leases the above units to Lessee for a term of 36 months from the date of this lease. A rental payment of $5049.39, shall be made at the beginning of each 3 month portion of the above stated term for a total of 12 rental payments. Advance rentals of $5049.39, receipt whereof is hereby acknowledged, shall be applied to the first rental period and any excess applied to the last rental period(s). 2. ASSIGNMENT BY LESSOR Lessee agrees that Lessor may assign this lease and all right, title and interest of Lessor in and to the units and all rents due or to become due hereunder, of which assignment Lessee hereby waives notice. Lessee’s obligation to pay rent under this lease shall not as to any such assignee be subject to any diminution arising out of any breach of any obligation hereunder or other liability of Lessor to Lessee. The Lessor, or an assignee claiming under him as the case may be, is sometimes referred to herein as the “Owner.” Lessee will not sublease units or assign any of his rights hereunder. 3. RENEWAL OR EXTENSION If Lessee is not in default in performance of any of its obligations hereunder, Lessee may by thirty days’ written notice to the Owner prior to the expiration hereof, or any renewed or extended period, elect to renew or extend this lease for succeeding twelve month periods, provided, however, that Lessee shall pay to the Owner for each such renewal an annual rental in advance equaling 2% of the aggregate rentals otherwise payable hereunder, and all the provisions of this lease shall apply, except as otherwise specifically provided herein or in any subsequent agreement of the parties. 4. EXPIRATION OF TERM; RETURN OF UNITS At the expiration of the term of the lease or any renewal thereof without further renewal, Lessee shall return all units to the Owner at a place designated by the Owner no more than fifty miles from the place where the units were originally leased. It is provided, however, that Lessee in lieu of returning any unit may, by written notice to Owner, eleet that the unit shall be sold as provided in Section 8 and final settlement made as provided in Section 9. 5. WARRANTY Except as provided below, Lessor will replace parts which prove defective within six months of the date of this lease with normal and proper use provided Lessee delivers the unit to Lessor’s service shop or reimburses Lessor for travel or transportation expense. Except as provided below as to agricultural shovels and sweeps, Lessor makes no other warranty or representation and has no other obligation with respect to the units, their. condition, merchantability, or performance. Lessee agrees that the units are of a size, design and capacity selected by him, and ft satisfied that the units are suitable for his purpose. Lessor has no obligation of any kind as to batteries and rubber tires and non-John Deere goods, as to all of which Lessee agrees to look solely to the written warranty, if any, undertaken by the manufacturer thereof which is hereby assigned by Lessor _ to Lessee. Lessor undertakes no warranty or obligation of any kind as to second-hand goods. Lessor guarantees John Deere agricultural shovels and sweeps against breakage of any kind when such breakage occurs before any appreciable wear takes place. 6. INSURANCE Lessee at its own expense will carry public liability insurance in amounts satisfactory to the Owner against bodily injury, including death, and against property damage, and will keep the units insured at its full insurable value under standard inland marine “all risk” type physical damage policy with maximum deduetibility of $50, all with companies satisfactory to Owner. Lessee shall deliver to the Owner the insurance policies or certificates or other evidence satisfactory to the Owner of the maintenance of the above insurance. All insurance shall contain an agreement of the insuring company not to cancel the same without at least ten days’ notice to the Owner. 7. LOSS OR DAMAGE TO UNITS All risk of loss or damage to the units is assumed by Lessee until their return to the Owner at the expiration of the lease or renewal thereof, or until final settlement has been made pursuant to Section 9. If a damaged unit is capable of being repaired, Lessee shall repair it at his cost and may apply insurance proceeds for this purpose, but inadequacy of such proceeds to cover the cost does not excuse or diminish Lessee’s obligation to repair. If a unit is damaged beyond repair, insurance proceeds shall be paid over to the Owner and the wreckage sold pursuant to Section 8 below. 8. TERMINATION OF LEASE; SALE OF UNITS At any time after the first twelve months of the lease term, Lessee may by written notice to the Owner terminate this lease with re spect to any unit. In such event, or in the event of damage to the unit beyond repair under Section 7 above, Lessee shall promply arrange to sell the unit by bona fide sale in the open market. Such sale is subject to prior written approval of the Owner and all proceeds of such sale after deduction of expenses incurred by Lessee in connection therewith shall be delivered to the Owner. At its option the Owner may elect to take possession of the unit and handle the sale itself. 9. FINAL SETTLEMENT Upon receipt by the Owner of the proceeds of any unit sold pursuant to Section 8 or 10 or the proceeds of any insurance pursuant to Section 7, the Owner will adjust the rental payable hereunder by returning to Lessee the amount by which such proceeds exceed the present value of rentals provided for in Section 1 remaining unpaid plus any obligation of Lessee under Section 12 hereof. The present value of future due rental will be computed on the basis of discount rates taken from the John Deere Finance Chart. If such proceeds are less than such present value of rentals, plus such obligation, Lessee shall pay such difference promptly on demand. 10. DEFAULT If Lessee shall fail to make any rental payment when due, shall attempt to sell or encumber the units, shall cease operating, shall institute or have instituted against him proceedings under any bankruptcy or insolvency law, shall make an assignment for the benefit of creditors, or shall fail to comply with any other provision of this lease, or if any attachment, execution, writ, etc., or other process is levied against the units or any of Lessee’s property, or if for any reason the Owner deems itself unsafe, Lessee agrees to surrender possession of the units on demand. The Owner may treat possession of the units as final settlement under this lease, retaining all rental payments theretofor made, or at its option, the Owner may sell the units and make final settlement according to the terms of Section 9. It is provided however, that the expenses of repossession and sale, including reasonable attorneys’ fees, shall be added to the obligations of Lessee hereunder for purpose of final settlement. 11. CONSTRUCTION This agreement is, and is intended to be, a lease, and nothing herein shall be construed as conveying to Lessee any right, title or interest in the units or their proceeds except as Lessee. 12. LIABILITY Lessee assumes all risk and liability for and shall hold the Lessor and its assigns harmless from all claims, liabilities or expenses for injuries or death to persons or loss or damage to property allegedly caused by any unit or arising out of the use, possession or transportation thereof. 13. SERVICE AND USE Lessee agrees to care for the units in a careful and prudent manner and to make at his expense any and all repairs which may be necessary to keep the units in as good condition as they are now, reasonable use and wear thereof, excepted. Lessee shall comply with and conform- to all laws and regulations relating to ownership, possession, use and maintenance of the units, and with all conditions of policies of insurance on the units. Lessee shall pay when due all taxes, license fees and charges of any kind that may be assessed or charged against the units or the use thereof. Lessee will not without written consent of the Owner install any accessory or device on any unit if such installation will impair the originally intended function or use of the unit. All parts or devices affixed to any unit shall automatically become the property of the Owner (except such as may .be removed without .in any way affecting the originally intended function or use of the unit). A. H. Heine Imp. Co. Floren Klopfenstein LESSOB LESSEE A. H. Heine Ifnp. Co. Floren Klopfenstein BY BY July 29, 1965 (DATE) Appendix.—Reporter. We note that at the time of levy by defendant the parties valued three pieces of equipment at $16,500, a figure which appears to be the present value of the unpaid payments under the agreement for three pieces of equipment.

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Shepherd, J. Respondent, the State Tax Commission, appeals as of right a December 28, 1990, decision by the Kent Circuit Court reversing the commission’s denial of petitioner’s application for an industrial facilities exemption certificate pursuant to the rehabilitation and industrial development districts act, 1974 PA 198, MCL 207.551 et seq.; MSA 7.800(1) et seq._ Petitioner, Great Lakes Sales, Inc., is engaged in the general business of wholesale distribution of vinyl and carpet floor coverings. In November 1987, petitioner filed an application for an industrial facilities exemption certificate with the City of Wyoming for a 14,480-square-foot addition to an existing building. The existing building had previously been granted an exemption by Kent Circuit Court Judge Roman Snow in 1979. After the City of Wyoming had granted its approval on February 1, 1988, the application was sent to the respondent commission for final approval. In August 1988, the commission notified petitioner that it was denying petitioner’s application on the ground that the property did not satisfy the definitional requirements of 1974 PA 198, MCL 207.551 et seq.; MSA 7.800(1) et seq. (the rehabilitation and industrial development districts act). Petitioner then requested a hearing before the commission. After a hearing on November 29, 1988, the commission issued an order denying petitioner’s application for an industrial facilities exemption certificate. Subsequently, petitioner requested a rehearing because the commission failed to provide any findings of fact or conclusions of law as required under MCL 24.285; MSA 3.560(185). On March 7, 1989, the commission issued another order denying petitioner’s application. Petitioner submitted a second request for rehearing, and another hearing was held on October 24, 1989. On December 11, 1989, the commission issued its findings of fact, conclusions of law, and an opinion denying petitioner’s application. Subsequently, petitioner sought judicial review in the Kent Circuit Court. On December 28, 1990, the court reversed the commission’s denial of petitioner’s application and found that petitioner was entitled to the industrial facilities exemption certificate because its property qualified as "industrial property” under § 2(6) of 1974 PA 198. The rehabilitation and industrial development districts act was adopted by the Legislature to provide qualifying facilities an exemption from, or abatement of, ad valorem real and personal property taxes under the General Property Tax Act, 1893 PA 206, MCL 211.1 et seq.; MSA 7.1 et seq. In general, such facilities must create, maintain, or prevent loss of employment and must primarily restore, replace, or update the technology of obsolete industrial property. MCL 207.559(2); MSA 7.800(9)(2); Murco, Inc v Dep’t of Treasury, 144 Mich App 777, 779; 376 NW2d 188 (1985). For a "new facility,” a specific tax called the "industrial facility tax” is imposed, which equals fifty percent of what the facility’s tax would be under the general property tax. MCL 207.564(2); MSA 7.800(14)(2). A "new facility” is defined in § 2(4) of 1974 PA 198, MCL 207.552(4); MSA 7.800(2)(4), as new industrial property other than a replacement facility to be built in a plant rehabilitation district or industrial development district. In this case, petitioner sought an exemption for property valued at approximately $850,000 in 1988. Since the adoption of the act, "industrial property” has been defined in § 2(6) of 1974 PA 198, MCL 207.552(6); MSA 7.800(2)(6), as follows: "Industrial property” means land improvements, buildings, structures, and other real property, and machinery, equipment, furniture, and fixtures or any part or accessory thereof whether completed or in the process of construction comprising an integrated whole, the primary purpose and use of which is the manufacture of goods or materials or the processing of goods and materials by physical or chemical change .... Industrial property shall include facilities related to a manufacturing operation under the same ownership, including but not limited to office, engineering, research and development, warehousing, or parts distribution facilities. In 1982, the act was amended by 1982 PA 417, which added § 2(10) to define the phrases "manufacture of goods or materials” and "processing of goods or materials”: "Manufacture of goods or materials” or "processing of goods or materials” means any type of operation that would be conducted by an entity included in the classifications provided by division D, manufacturing, of the standard classification manual of 1972, published by the United States office of management and budget, regardless of whether the entity conducting such an operation is included therein. The first question presented in this case involves the interpretation of the statute providing an exemption for qualified property. Respondent contends that petitioner failed to qualify for the exemption under 1974 PA 198 because the facility must be used primarily for the manufacture of goods or materials. Petitioner argues that the new facility qualifies as industrial property entitled to an exemption because it comprises an integrated whole whose primary purpose and use, as set forth in § 2(6), involves the type of operation that falls within the definition of "manufacture of goods or materials” or "processing of goods or materials” under § 2(10) of the act. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. William Mueller & Sons, Inc v Dep’t of Treasury, 189 Mich App 570, 572; 473 NW2d 783 (1991). Where the meaning of a statute is clear and unambiguous, judicial construction or interpretation is precluded. People v Willie Miller, 186 Mich App 238, 241; 463 NW2d 250 (1990). When ascertaining legislative intent, the language of the statute should be given a reasonable construction, considering the statute’s purpose and the object sought to be accomplished. Id. Unless defined in the statute, every word or phrase should be accorded its plain and ordinary meaning. MCL 8.3a; MSA 2.212(1); People v Tracy, 186 Mich App 171, 176; 463 NW2d 457 (1990). Tax exemption statutes are to be strictly construed in favor of the taxing unit. Mueller, supra. Courts are to give deference to an administrative agency’s interpretation of a statute it is entrusted to enforce. Bar Processing Corp v State Tax Comm, 171 Mich App 472, 478; 430 NW2d 753 (1988). Under 1974 PA 198, as amended, a facility qualifies as industrial property under §2(6) if it comprises an "integrated whole, the primary purpose and use of which is the manufacture of goods or materials or the processing of goods and materials by physical or chemical change.” Section 2(10) defines "manufacture of goods or materials” and "processing of goods or materials” to mean "any type of operation that would be conducted by an entity included in the classifications provided by division D . . . regardless of whether the entity conducting such an operation is included therein.” Accordingly, the manufacture of goods or materials or processing of goods or materials, as defined in § 2(6), includes any type of operation that would be conducted by an entity classified as a manufacturer under division D of the Standard Classification Manual, regardless of whether the entity performing the operation is classified as a manufacturer under division D. The terms "the primary purpose and use” and "by physical or chemical change” as used in § 2(6) are not defined by the statute, and thus must be accorded their ordinary and customary meaning. Tracy, supra. Webster’s Seventh New Collegiate Dictionary (1967) (based on Webster’s Third New International Dictionary) defines "primary” as "of first rank, importance, or value.” Webster’s Third New International Dictionary Unabridged Edition (1964) defines "change” as: to make different in some particular but short of conversion into something else ... to become different in one or more respects without becoming something else. Webster’s Seventh New Collegiate Dictionary adds that change implies making either an essential difference often amounting to a loss of original identity or a substitution of one thing for another; . . . change may imply any variation whatever whether affecting a thing essentially or superficially. We note that in rendering its December 11, 1989, opinion, the commission committed several errors in interpreting the relevant statutory provisions. In its findings of fact, the commission found that 1974 PA 198 was amended by adding § 2(10) "requiring that the entity would be included in the classifications provided by division D, Manufacturing, of the Standard Classification Manual of 1972.” In its conclusions of law and opinion, the commission stated: The Commission concluded that the amendment to 1974 PA 198 which added section 2(10) requires that the facility must be engaged in manufacturing instead of only causing a physical or chemical change to a product. Contrary to respondent’s construal, the plain language of § 2(10) does not require that the entity conducting the operation must be classified as a manufacturer under division D of the Standard Classification Manual. Rather, § 2(10) focuses on the type of operation conducted by an entity that would be included in the classifications provided by division D, manufacturing, regardless of whether the entity is a manufacturer. Moreover, §2(10), by its plain language, includes the "processing of goods or materials,” which, under § 2(6), is "by physical or chemical change.” Thus, § 2(10) is not limited to operations that manufacture goods or materials, but includes any type of operation that would be performed by a manufacturer under the Standard Classification Manual. In this case, it is undisputed that the operations conducted in petitioner’s new facility include types of operations that would be conducted by an entity included in the classifications under division D. Petitioner’s operations involving the cutting of large rolls of carpet and vinyl are identical to the final steps in the manufacturing process occurring in carpet and vinyl mills. The Standard Industrial Classifications Codes describing petitioner’s new facility were 2279 (i.e., establishments primarily engaged in the manufacture of carpets and rugs) and 3396 (i.e., establishments primarily engaged in the manufacture of vinyl). Both codes describing petitioner’s operations are included in division D, manufacturing. (Note: Code 2279 is now classified under code 2273.) Thus, even though petitioner is classified under code 5023 (i.e., establishments primarily engaged in the wholesale distribution of home furnishings and housewares including carpets, linoleum, and all other types of hard and soft floor coverings), the operations occurring in petitioner’s new facility are the types that would be conducted by an entity included in the classifications provided by division D, manufacturing, as required by § 2(10) of the act. Having decided that §2(10) of the statute does not require the entity or the facility to be engaged in manufacturing and that petitioner satisfies the definitional requirements of §2(10), because the operations occurring within its new facility are types of operations that would be conducted by an entity classified as a manufacturer by the Standard Classification Manual, the question then becomes whether the processing of goods or materials in petitioner’s new facility satisfies the definition of "industrial property” under § 2(6) of the act. In denying petitioner’s application for an exemption, the commission stated: It is the opinion of the State Tax Commission that the primary purpose of the facility is not manufacturing but is warehousing and distribution of carpet and floor covering. It is further the opinion of the State Tax Commission that the operation of carpet or vinyl sheet cutting is not manufacturing when it is an isolated operation and therefore the sales display area, floor covering storage and offices are not qualified as manufacturing within its understanding of section 2(10) of 1974 PA 198. Section 106 of the Administrative Procedures Act, MCL 24.306; MSA 3.560(206), provides the scope of judicial review in this matter: (1) Except when a statute or the constitution provides for a different scope of review, the 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 any of the following: (a) In violation of the constitution or a statute. (d) Not supported by competent, material and substantial evidence on the whole record. (f) Affected by other substantial and material error of law. (2) The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings. When reviewing whether an agency’s decision was supported by competent, material, and substantial evidence on the whole record, a court must review the entire record and not just the portions supporting an agency’s findings. West Ottawa Ed Ass’n v West Ottawa Public Schools Bd of Ed, 126 Mich App 306, 313; 337 NW2d 533 (1983). "Substantial evidence” has been defined as that which a reasonable mind would accept as adequate to support a conclusion. Consumers Power Co v Public Service Comm, 189 Mich App 151, 187; 472 NW2d 77 (1991). Substantial evidence consists of more than a scintilla of evidence, but less than a preponderance of the evidence. Id. As noted above, to qualify as industrial property under § 2(6), the facility must comprise an "integrated whole, the primary purpose and use of which is the manufacture of goods or materials or the processing of goods and materials by physical or chemical change.” In this case, petitioner’s new facility is used to store, cut, and process floor covering materials in an integrated operation. In both facilities, petitioner stores ceramic tiles, vinyl, carpet, carpet pads, and wood flooring. Carpet and sheet vinyl come in large, bulky rolls that must be processed by physical change (i.e., cut to size) in order to be sold to retailers. Although petitioner is classified as a wholesaler, the operation in the new building is similar to the final manufacturing steps taken by carpet mills and vinyl floor manufacturers. As with the mills and vinyl floor manufacturers, petitioner uses a cutting machine that occupies a small part of the new facility. Petitioner, like the manufacturers, must store or warehouse materials on storage racks. The storage and warehousing of the materials is incidental to the processing stage, because petitioner must process the floor covering materials to conduct its wholesale business. Thus, determining whether petitioner’s new facility satisfies the definition of industrial property under § 2(6) turns on whether its primary purpose and use involves the processing of goods or materials by physical change. In this case, a review of the entire record, which covers only two of the hearings before the commission reveals that the overwhelming majority of petitioner’s products are subject to processing in the new facility. There, approximately ninety percent of the vinyl and sixty-six to eighty-five percent of the carpet is cut. In addition, forty to sixty percent of the wood flooring is broken down into smaller components, as is sixty to seventy percent of the ceramic tiles. The only items stored by petitioner that are not cut or disassembled are the carpet pads. Respondent argues that the primary purpose and use of petitioner’s new facility is not manufacturing, but rather the wholesale distribution of vinyl and carpet floor coverings manufactured by others. Respondent concludes that the new facility is primarily for storage because only about 3,200 square feet, or approximately twenty-two percent of the total area of the new facility, is devoted to the processing operations. The record indicates that the cutting machine that is used to cut the vinyl and the carpet occupies about 1,000 square feet or about five percent of the new facility. In addition, a space of approximately 800 to 1,000 square feet is set aside for manually cutting fifteen-foot-wide carpets and grass carpets that cannot be cut on the machine. Further* defendant’s employees break down about fifty percent of the shipments containing ceramic tile for the purpose of preparing sample boards in an area of approximately 1,200 square feet. Aisles and racks occupy about fifty percent of the new facility. Contrary to respondent’s claims, we do not believe that floor space utilization is controlling with regard to this issue. As previously observed, the statute leaves "primary purpose and use” undefined. Moreover, § 2(6) specifically allows that "[industrial property shall include facilities related to a manufacturing operation . . . including but not limited to . . . warehousing, or parts distribution facilities.” The mere fact that most of the petitioner’s new facility is not occupied by machinery or employees involved in the processing of goods or materials is not dispositive. The goods processed and sold by petitioner are bulky and require considerable space for storage. For this reason, the percentages of goods that are processed are of greater relevance in determining the primary use of the facility. Thus, the record suggests that the commission’s decision was not supported by substantial evidence, given that the primary purpose and use of the new facility appears to be the processing of goods or materials by physical change. Consumers Power Co, supra. Throughout this opinion, we have emphasized the primary purpose of the operations at the new facility rather than the primary purpose of petitioner’s entire business. This is the only reasonable interpretation of the present statutory scheme, which refers to the "land improvements, buildings, structures ... or any part or accessory thereof. . . the primary purpose and use of which is the . . . processing of goods and materials by physical or chemical change.” MCL 207.552(6); MSA 7.800(2X6). We therefore hold that a nonmanufacturer who constructs a new facility that has as its primary purpose and use the processing of goods may qualify for the tax exemption with regard to that new facility. We affirm the decision of the Kent Circuit Court reversing the commission’s decision denying petitioner’s application for an industrial facilities exemption certificate.

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Quinn, J. In a non jury trial, plaintiff widow recovered judgment in this wrongful death action, MCLA 600.2922 et seq; MSA 27A.2922 et seq. Defendant appeals. The issue presented by the appeal is, Is an insane person civilly responsible for his torts? Research fails to disclose any Michigan authority on this question. About 8 a.m. July 22, 1968, Benjamin A. BarylsM went to defendant’s home to borrow a wrench. Defendant shot BarylsM, who died shortly thereafter. Soon after his arrest, defendant stated to a deputy sheriff “That he had shot the man”. Defendant also told the sheriff, “Somebody had been by his door that morning and he also stated they had been after him. He said somebody is trying to get me. He said they had been around the house all night.” Defendant was charged with murder. A preliminary psychiatric examination revealed that defendant was incompetent to stand trial, and he was committed to the Department of Mental Health by reason of his insanity pursuant to MCLA 767.27a et seq; MSA 28.966(11) et seq. In his answer to plaintiff’-s complaint, defendant pleaded: “That at the time of the alleged occurrence the defendant was not of sound mind and was without Miowledge as to the presence of the plaintiff and was unaware that the plaintiff was on the premises”, as an affirmative defense. The trial court held: “The great weight of authority is that an insane person is civilly liable for his torts although he does have the right as in this case to have a defense made for him by a guardian to ascertain if he did commit the tortious act.” TMs was a correct holding, see 51 ALR 833, 89 ALR 476, 77 ALR2d 625, 39 Penn BAQ 73 (1967), and 4 Restatement Torts, § 887, Comment a, p 468. The applicable rule is well stated in Williams v Hays, 143 NY 442, 446-447; 38 NE 449-50 (1894): “The general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander and malicious prosecution. In all other torts, intention is not an ingredient, and the actor is responsible although he acted with a good, and even laudable purpose, without any malice. The law looks to the person damaged by another and seeks to make him whole, without reference to the purpose or condition, mental or physical, of the person causing the damage. The liability of a lunatic for his torts, in the opinions of judges, has been placed upon several grounds. The rule has been invoked that, where one of two innocent persons must bear a loss, he must bear it whose act caused it. It is said that public policy requires the enforcement of the liability, that the relatives of a lunatic may be under inducement to restrain him, and that tort feasors may not simulate or pretend insanity to defend their wrongful acts, causing damages to others. The lunatic must bear, the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.” In a wrongful death action, the act of the defendant upon which his liability is asserted does not require a specific intent that might be negated by insanity, Roberts v Hayes, 284 Ill App 275; 1 NE2d 711 (1936). Affirmed with costs to plaintiff. All concurred.

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Memorandum Opinion. Defendant was convicted of assault with intent to rob while armed, and appeals. The people have filed a motion to affirm. Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm granted.

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Memorandum Opinion. Defendant was convicted on plea of guilty of attempted breaking and entering an occupied dwelling house with intent to commit larceny therein, and appeals. The people have filed a motion to affirm. Upon examination of the brief and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission. Motion to affirm granted.

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Per Curiam. Defendant was convicted upon his plea of guilty to larceny over $100 (MCLA § 750.356 [Stat Ann 1971 Cum Supp § 28.588]) in the Hillsdale County Circuit Court. He appeals of right. Defendant was originally charged with armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). The information was orally amended at his arraignment to include larceny over $100. Defendant argues the failure to reduce this to writing inadequately informed him of the charge against him. No objection to this was raised at the arraignment. An examination of the record discloses no prejudicial error. MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016). This Court will not consider such an objection for the first time on appeal. People v. Kildow (1969), 19 Mich 194. Affirmed.

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Lesinski, C.J. Defendant insured was struck and severely injured by an unidentified, uninsured, hit- and-run vehicle on November 1, 1963. In accordance with the terms of the uninsured motorist clause in the insurance policy which plaintiff insurer had issued to defendant, defendant demanded arbitration of his claim against plaintiff on October 20, 1969. Subsequently, plaintiff brought this action for a declaratory judgment, contending that defendant-insured’s claim was barred by the three-year statute of limitations. Defendant moved for summary judgment, which motion the trial court denied. The trial court then ruled that the three-year statute of limitations did apply to defendant’s action and proscribed it. Defendant appeals as of right. On appeal, we are confronted with the single issue of whether the three-year or six-year statute of limitations applies to defendant insured’s claim against plaintiff insurer. We find this question to be a matter of first impression in this state. MCLA 600.5805; MSA 27A.5805, provides, in relevant part, that: “No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the time prescribed by this section. # * # “(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.” On the other hand, the terms of MCLA 600.5807; MSA 27A.5807, include the following language: “No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * * “(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.” Defendant bases his claim against plaintiff on the policy of insurance issued by plaintiff insurer to defendant. It included a clause providing that: “Subject to the limits of liability stated in this coverage, the company agrees to pay: “Part (1) All sums which the insured shall be legally entitled to recover as damages, including damages for care or loss of services, from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. # * # “Definitions. “For the purpose of this coverage: * * * “(d) uninsured automobile means * * * “(2) with respect to bodily injury only, a hit and run vehicle.” Insurers in the State of Michigan are required to include such uninsured motorist coverage within motor vehicle liability policies pursuant to the mandate in MCLA 500.3010; MSA 24.13010. Plaintiff insurer relies heavily on the Michigan Supreme Court decision in State Mutual Cyclone Insurance Co v O & A Electric Cooperative, 381 Mich 318 (1968), to support its proposition that the subject matter of the instant claim is automobile negligence, and is, therefore, governed by the three-year statute of limitations, concerning injuries to persons and property. In the State Mutual Cyclone Insurance Co case, plaintiff-insurer, as subrogee of its insured, brought an action against defendant, after an excessive surge in electrical current provided to insured by defendant caused a fire in insured’s barn, which fire destroyed ten head of insured’s cattle. Although plaintiff alleged that de fendant had breached its contract with insured by supplying the excess current, the Supreme Court held that the three-year statute of limitations was applicable, instead of the six-year term, which controls breach of contract actions. In so ruling, the Court stated: “When this Court decided Baatz we stated that if a plaintiff seeks recovery fof damages for injury' to person or property the 3-year rule applies irrespective of how plaintiff proceeded to seek such recovery * * * . “When we compare the statute in effect when the Baatz decision was handed down * * * with the same thought expressed in the rule-written version of the 1961 revised judicature act * * * , it becomes apparent that the legislature expressed approval of this Court’s decision in Baatz to the effect that it makes no difference what form of action the plaintiff institutes in seeking recovery for damages to property or person, but in all cases such action comes within the 3-year limitation rule. There is a total absence of any legislative mandate or thought that we distinguish between actions on express contracts to recover damages for injury to person or property and actions based upon implied contract.” State Mutual Cyclone Insurance Co, supra, p 324-325. Since plaintiff’s action was based on an injury to property, the three-year statute of limitations was applied and the action was barred, irrespective of the fact that he had sued on a contract theory. This Court has had the opportunity to interpret the State Mutual Cyclone Insurance Co doctrine on several occasions. In Smith v Gilles, 28 Mich App 166 (1970), plaintiffs sued defendant and defendant’s insurer ás a result of injuries incurred in an auto mobile accident. Count II of plaintiffs’ complaint alleged that defendant’s insurer, by indicating a willingness to settle with plaintiffs but failing to advise them of the three-year statute of limitations, had contracted with plaintiffs to settle at any time. In determining that the three-year statute of limitations barred plaintiffs’ claim in Count II, the Court noted that “this wrong lies essentially in tort”. Smith, supra, p 170. The Court emphasized that plaintiffs could not accomplish indirectly what they were proscribed from doing directly. Plaintiffs, in Harrington v Nelson, 32 Mich App 347 (1971), added a count alleging breach of an implied contract to their suit for conversion. Defendant had allegedly come onto plaintiffs’ land and converted dirt and gravel to his own use. This Court held that the three-year statute of limitations barred plaintiffs’ claim, because plaintiffs’ action was based on an injury to property, despite plaintiffs’ contract theory. A similar result obtained in Nelson v Michigan Bean Co, 22 Mich App 540, 544 (1970). Plaintiffs claimed that defendants’ breach of express warranties of contract resulted in injury to their hog-raising business. However, the only evidence of a contract introduced at trial was a sales slip. The Court stated that: “Absent any breach of a specific contractual provision, this case is governed by the statutory provisions applicable to injuries to persons or property.” (Emphasis supplied.) In applying these holdings to the facts of the present case, we deem it necessary to examine the underlying nature of the claim asserted by the insured against the insurer. Although there is no Michigan law on this point, courts from other jurisdictions have discussed the nature of the claim in this specific factual context. In Schleif v Hardware Dealer’s Mutual Fire Insurance Co, 218 Tenn 489, 494 ; 404 SW2d 490, 492 (1966), plaintiff insured suffered injuries in an accident with, an uninsured hit-and-run motorist, and subsequently brought an action against his insurer on the basis of his uninsured motorist clause. In declaring that the contract statute of limitations applied, the Court noted: “The instant case is not based on a suretyship between insured and tortfeasor, it is based on a direct contractual relationship between insured and insurer. Nor is it a warranty arrangement, * * * where the obligor’s breach of duty to the obligee was the tort itself.” In a similar case, the Wisconsin Supreme Court, examining the foundation of the legal obligation between insurer and insured arising from an uninsured motorist clause, said: “The purpose and intent of this type of coverage was to benefit the insured so that he would be reimbursed for his injuries. The purpose was not to provide free liability insurance for an otherwise uninsured motorist; and the endorsement does not do so because a right of subrogation does exist, if the insurer wishes to preserve it. In settling a claim under the endorsement, the insurer does not represent the uninsured motorist but rather itself on its own contract against its own insured who has paid a premium for this indemnity feature in his liability policy.” Sahloff v Western Casualty & Surety Co, 45 Wis 2d 60, 69-70; 171 NW2d 914, 918 (1969). The Court, in Sahloff, held that a suit brought under uninsured motorist coverage came within the confines of Wisconsin’s six-year contract statute of limitations, rather than the three-year tort statute of limitations. In tbe instant case, as indicated by tbe foregoing language from the Sahloff and Schleif opinions, plaintiff insurer owed no obligation to defendant insured, outside the terms of the insurance contract. Whatever claim that defendant insured may validly possess against plaintiff insurer arises solely out of a breach of a specific provision of a contract issued by plaintiff to defendant. It was not the tortious action of plaintiff insurer that gave rise to the claim based on the uninsured motorist clause of the insurance policy in this case. While it is true that a claim by defendant against the uninsured motorist in this case would be barred by the three-year statute of limitations, plaintiff insurer is not representing the uninsured motorist in this case, as pointed out in Sahloff, but rather itself, on its own contract. Moreover, defendant insured has not fabricated a contract claim, here, in order to accomplish indirectly what he could not do directly. Just as we must look to the real nature of the claim to determine whether a contractual action is, at base, an action for injury to person or property, we must also look to the real nature of this claim to determine whether a claim possessing personal injury aspects is, at root, an action for breach of contract. Contrary to the position taken by plaintiff insurer in this case, we believe the State Mutual Cyclone Insurance Co test was intended to apply to those cases where plaintiff is seeking to recover from defendant, or defendant’s insurer, where defendant had occasioned direct injury to plaintiff in his person or property, not where a party is seeking legal redress from his own insurer, which insurer has contractually agreed to indemnify him for injury perpetrated upon him, not by the insurer, but by third parties. A similar distinction was made by the court in Schulz v Allstate Insurance Co, 17 Ohio Misc 83, 84; 244 NE2d 546, 547 (1968), in interpreting an Ohio statute which read.: “An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.” Section 2305.10, Revised Code. An earlier Ohio decision had applied this two-year statute of limitations to a suit predicated on breach of an implied contract of safe carriage. The Schulz court distinguished the earlier decision from the factual situation with which it was concerned, a suit by an insured against his insurer on an uninsured motorist clause, emphasizing that in the earlier case: “As obviously distinguished from the instant case, the actions of the defendant caused injury to the plaintiff. Here, by virtue of Allstate’s contract, it had obligated itself to pay an amount equivalent to that which could be recovered in a negligence action, but we think it clear that the ‘cause of action’ is not one for ‘bodily injury’ within the purview of Section 2305.10, Revised Code.” Schulz, supra, 17 Ohio Misc p 85; 244 NE2d p 548. Accordingly, the court held that the longer contract statute of limitations was applicable to the action. Even if the State Mutual Cyclone Insurance Co case does not dictate employment of the three-year statute of limitations, however, plaintiff insurer argues that it should be applied nevertheless, because of the language in the insurance contract. The contract states that insurer will pay: “Part (1) All sums which the insured shall be legally entitled to recover as damages * * * from the owner or operator of an uninsured automobile.” (Emphasis supplied.) Since defendant insured’s action against the uninsured motorist would be barred by the three-year statute of limitations, plaintiff insurer contends that defendant is not “legally entitled to recover” within the terms of the contract. As authority for the proposition, insurer cites the opinion of the First Circuit Court of Appeal of Louisiana in Thomas v Employers Mutual Fire Insurance Co, 208 So 2d 374 (La App, 1968). However, that decision was overruled by the Supreme Court of Louisiana in Thomas v Employers Mutual Fire Insurance Co, 253 La 531; 218 So 2d 584 (1968). That Court explained its rationale for reversing Thomas, supra, in Booth v Fireman’s Fund Insurance Co, 253 La 521, 529; 218 So 2d 580, 583 (1968). Construing the “legally entitled to recover” clause, the Court stated: “We interpret the words ‘legally entitled to recover’ to mean simply that the plaintiff must be able to establish fault on the. part of the uninsured motorist which gives rise to damages and prove the extent of those damages.” Booth, supra, 218 So 2d p 583. The great weight of authority is in accord with the Booth interpretation. See Hill v Seaboard Fire & Marine Insurance Co, 374 SW2d 606 (Mo, 1963); DeLuca v Motor Vehicle Accident Indemnification Gorp, 17 NY2d 76; 268 NYS 2d 289; 215 NE2d 482 (1966); and Sahloff, supra. We agree with the decisions of these courts that the “legally entitled to recover” clause denotes only the establishment of fault on the part of the uninsured motorist and proof of the damages caused thereby. The “legally entitled” phrase does not subject insured’s claim to the three-year statute of limitations. We hold that the six-year statute of limitations applies to defendant insured’s claim against plain tiff insurer on the uninsured motorist clause of his insurance contract. Reversed and remanded for disposition not inconsistent with this opinion. Costs to defendant. All concurred. Baatz v Smith, 361 Mich 68 (1960).

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Memorandum Opinion. Defendant pleaded guilty to the offense of larceny from a person and was sentenced to imprisonment for a term of nine to ten years and appeals as of right. An examination of the record and briefs discloses no prejudical error. Affirmed.

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Reilly, P.J. Petitioner Robert Stackpoole, a corporate officer of Warrior Petroleum, Ltd., appeals as of right from a Michigan Tax Tribunal decision affirming a sales tax deficiency assessment against him. We affirm and remand. Warrior, which operated a retail gasoline station, filed a tardy tax return and was late in its payment of sales and withholding taxes for October 1981. As a result, on April 19, 1982, respondent issued a "notice of final assessment” for penalties and interest in the amount of $823.08. Another "notice of final assessment” for taxes, interest, and penalties was issued on April 27, 1982, in the amount of $10,806.85 for the period of November 1981 through February 1982. This notice was amended on June 3, 1982, and the amount due was reduced to $8,384.13. Also, on the same date, a notice was issued in the amount of $129.70 for penalties for March 1982. On June 2, 1982, the day before the issuance of these notices, Warrior filed for bankruptcy and an automatic stay was effectuated pursuant to 11 USC 362. In January 1985, the bankruptcy case was dismissed and the stay was lifted. In July 1985, an assessment in the amount of $10,435.82 was issued against Stackpoole, as the liable corporate officer. This assessment covered only the sales tax portion of the corporate assessment. Stackpoole appealed the personal assessment to the Michigan Tax Tribunal. Although Stackpoole acknowledged that he was the corporate officer responsible for paying the taxes, he denied any personal liability. The tribunal found that Stackpoole was liable for the unpaid taxes pursuant to MCL 205.65; MSA 7.536. The tribunal apparently did not directly consider the effect of the bankruptcy stay on Stackpoole’s responsibility for the unpaid taxes. Our review of the Tax Tribunal’s decision is limited to determining whether the decision is authorized by law and is supported by competent, material, and substantial evidence on the whole record. Keith v Dep’t of Treasury, 165 Mich App 105, 107; 418 NW2d 691 (1987); Peterson v Dep’t of Treasury, 145 Mich App 445, 449; 377 NW2d 887 (1985). The authority to impose liability on a corporate officer for unpaid sales tax is found in MCL 205.65(2); MSA 7.536(2), which provides in pertinent part: If a corporation licensed under this act fails for any reason to file the required returns or to pay the tax due, any of its officers having control, or supervision of, or charged with the responsibility for making such returns and payments shall be personally liable for such failure. The dissolution of a corporation shall not discharge an officer’s liability for a prior failure of the corporation to make a return or remit the tax due. A corporate officer’s liability under the statute is derivative because it arises only if the corporation fails to file a required return or pay a tax due. Keith, supra at 110. See also Livingstone v Dep’t of Treasury, 169 Mich App 209, 214; 426 NW2d 184 (1988), aff'd 434 Mich 771; 456 NW2d 684 (1990) (interpreting provision imposing liability on a corporate officer for the corporation’s unpaid use taxes). In Livingstone, the Court of Appeals stated: By statute, once an assessment for unpaid taxes against a corporation becomes final and the corporation fails to remit the taxes due, any of the corporation’s officers having control, supervision of, or charged with the responsibility for making the tax returns shall become personally liable. [Id. at 213.] On appeal, Stackpoole argues that he is not liable for the unpaid taxes of the corporation because the automatic stay was in effect at the time the June 3, 1982, notices were issued to the corporation. Stackpoole asserts that his liability is derivative of that of the corporation. Therefore, he reasons, he cannot be liable because the notices of final assessment were in violation of the automatic stay and thus were void. 11 USC 362 provides that a petition for bankruptcy, once filed, operates as a stay applicable to all entities of, among other things, the commencement or continuation of proceedings against the debtor; the enforcement of a judgment obtained before the commencement of the case in bankruptcy; any acts to obtain possession of property of the estate; any acts to create, perfect, or enforce a lien against property of the estate; and any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the bankruptcy case. 11 USC 362(a); see also Lopez v Lopez, 191 Mich App 427; 478 NW2d 706 (1991). The purpose of the automatic stay is to preserve the status quo of the estate in an effort to effectuate a successful reorganization or liquidation. The stay protects the debtor from collection efforts or foreclosure actions and protects creditors to the extent that there is an orderly liquidation proceeding by which all creditors of equal status are treated the same. Lynch v Johns-Manville Sales Corp, 710 F2d 1194, 1196-1197 (CA 6, 1983). Despite the broad prohibitions enumerated in § 362(a), a bankruptcy filing under chapter 11 "does not operate as a stay ... of the issuance to the debtor by a governmental unit of a notice of tax deficiency.” 11 USC 362(b)(9) (formerly [b][8]); H & H Beverage Distributors v Pennsylvania Dep’t of Revenue, 850 F2d 165, 166-167 (CA 3, 1988). Therefore, although a governmental unit may not collect taxes or create a lien during the period of the stay, it may notify the debtor of a tax deficiency. Id. at 167. In the present case, a revised "notice of final assessment” for the period of November 1981 through February 1982 and a "notice of final assessment” for March 1982 were issued after the bankruptcy stay became effective on June 2, 1982. However, we conclude that the issuance of these notices was not an "act to create, perfect, or enforce a lien” against the property of Warrior. 11 use 362(a)(4), (5). Pursuant to MCL 205.24(1); MSA 7.657(24)(1): If a person fails or refuses to file a return or pay a tax administered under this act within the time specified, the department, as soon as possible, shall assess the tax against the person and notify the person of the amount of the tax. The purpose of such a statutory notice provision is "to provide the taxpayer with notice that a deficiency assessment has been levied for certain taxes and to afford the taxpayer an opportunity to contest it.” Keith, supra at 109. The notice itself does not create a lien. A tax lien in favor of the state attaches "from and after the date that any report or return on which the tax is levied is required to be filed with the department.” MCL 205.29(1); MSA 7.657(29X1). In the case of sales taxes, on or before the fifteenth day of each month, a taxpayer must transmit a return, together with a remittance for the tax due for the previous month, to the department. MSA 205.56(1); MSA 7.527(1). In the present case, a lien for unpaid sales taxes for the periods of November 1981 through February 1982 and March of 1982 attached before the June 2, 1982, bankruptcy filing and the June 3, 1982, "notice of final assessment.” Additionally, the notice itself was not an act to perfect the lien, see MCL 205.29(2); MSA 7.657(29) (2) and MCL 211.682; MSA 7.753(52), nor was it an action to enforce or collect on the lien, see MCL 205.25(1); MSA 7.657(25X1). Although the notice issued in this case was called "notice of final assessment,” it is distin guishable in purpose and effect from an action "to collect, assess, or recover” a claim, which is prohibited by 11 USC 362(a)(6). Under federal law, an Internal Revenue Service assessment involves formal recording of the taxpayer’s liability in the office of the secretary. 26 USC 6213(c); H & H Beverage, supra at 168. A federal tax lien attaches when unpaid taxes are assessed. 26 USC 6321, 6322; United States v Donahue Industries, Inc, 905 F2d 1325 (CA 9, 1990). Thus, the federal "assessment” governs the time when a lien is created, while the "notice of final assessment” in the present case was issued to satisfy the due process requirement of providing the taxpayer with notice of a deficiency and an opportunity to contest it. The "notice of final assessment” issued in the present case is similar to the "notice of tax deficiency” that may be issued during the period of a stay. 11 USC 362(b)(9). When the irs finds a tax deficiency, it is authorized to issue a formal "notice of tax deficiency.” 26 USC 6212; H & H Beverage, supra at 168. The taxpayer has ninety days after receiving the notice to seek a redetermination. If the taxpayer does not seek a redetermination, the deficiency is assessed. 26 USC 6213(a); H & H Beverage, supra at 168. Thus, the "notice of tax deficiency,” like the "notice of final assessment,” provides the taxpayer with notice of a tax deficiency and with an opportunity to contest the amount due. On the basis of the foregoing, we hold that the issuance of the amended "notice of final assessment” was not in violation of the bankruptcy stay. Because Warrior failed to pay the tax due after receiving the notice, Stackpoole became personally liable under the statute. Keith, supra at 110; Livingstone, supra at 213. Although the Tax Tribunal did not specifically address the extent of the bankruptcy stay, it properly concluded that Stackpoole was personally liable. Accordingly, we affirm. See, e.g., Thomas v Leja, 187 Mich App 418, 421; 468 NW2d 58 (1991). Stackpoole also argues that he should not be responsible for penalties and interest that accrued during the period of the stay. We note initially that Stackpoole does not specify the amount that allegedly accrued during this period. On the basis of the record before us, it appears that the amount of penalties and interest on the tax for the period of November 1981 to February 1982, which was assessed against Stackpoole, exceeded the amount that was originally assessed against Warrior. However, we cannot determine whether the increase was due to an accrual during the period of the stay or whether the additional amount accrued from the period the stay was lifted, January 1985 to the time when the assessment against Stackpoole was issued in July 1985. Generally, in bankruptcy proceedings, interest on prepetition claims ceases to accrue upon the filing of the bankruptcy petition. Nicholas v United States, 384 US 678, 682; 86 S Ct 1674; 16 L Ed 2d 853 (1966); In re Boston & Main Corp, 719 F2d 493, 495 (CA 1, 1983). However, there are certain exceptions to this general rule. See id. at 496. Because the Tax Tribunal did not address the claim that interest and penalties accrued during the period of the stay, we remand for a determination whether there was an accrual during this period and, if so, whether Stackpoole could be charged with the additional interest and penalties. Affirmed and remanded. Gillis, J., concurred.

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